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In    THREE    BOOKS. 

The  EIGHTH  EDITION,  with  many  valuable 


By  CHARLES   MO  L  LOT,    late  Barrifter  at  Law. 


Printed  for  Jo  h  n  W a  l  t  h  o e,  over-againft  the  Royal  Exchange 

in  Corn  hi  I L 

>,        MDCCXLIV. 

^'ADAMSirl,  17 


T  O    T  H  E 


TH  E  Wifdom  of  God  is  highly  to  be  ad- 
mired, who  hath  not  endowed  the  other 
living  Creatures  with  that  Sovereign  Per- 
fection of  Wifdom^  but  hath  fecured  and 
provided  for  them  by  natural  Muniments  from  Af- 
iault  and  Peril,  and  other  Necefficies :  But  Man  he 
formed  naked  and  frail,  becaufe  of  furnifhing  him 
with  Wifdom,  Underftanding,  Memory,  and  Senfe, 
to  govern  his  Adlions ;  endowing  him  with  that  pious 
Affediion  of  deiiring  Society,  whereby  one  is  inclined 
to  defend,  love,  cherifh,  and  afford  mutual  Aid  to 
each  other :  Nor  hath  he  in  no  lefs  wonderful  man-  Laaanths 
ner  (infinitely  tranfcending  all  human  Wifdom  and  ^* 
Underftanding)  created  the  material  World  to  be  fub- 
fervient  to  his  Being  and  Well-being :  Yet  without 
human  Underftanding  and  Reafon  did  he  not  build  a 
Ship,  raife  a  Fort,  make  Bread  or  Cloth ;  but  thefe 
came  to  pafs  only  by  human  Arts  and  Induftry,  in 
which  by  the  Revolutions  of  the  Celeftial  Bodies, 
Times  and  Seafons,  Materials  and  other  Neceflaries 
are  brought  forth,  by  the  Alteration  of  which  Men 
in  their  proper  Seafons  reap  the  Fruits  of  their  La-  Seneca  4.  de 
hour  5  fo  that  there  is  no  Society,  Nation,  Country  ^g''^-^'"^'^'"^* 
or  Kingdom,  but  ftands  in  need  of  another.  Hence 
it  is,  that  Men  knowing  each  others  NecefTaries,  are 
invited  to  T'raffick  and  Commerce  in  the  different  Parts 
and  Immenfities  of  this  vaft  World  to  fupply  each 
others  Neceffities,  and  adorn  the  Conveniencies  of 
human  Life. 



ii  r^  /^g  R  E  A  D  E  R. 

And  as  God  hath  fo  ordered  this  wonderful  Depen- 

dance  of  his  Creatures  on  each  other,  fo  hath  he  by 

a  Law  immutable  provided  a  Rule  for  Men  in  all 

their  Adions,  obliging  each  other  to  the  Performance 

leg.^  ut  -Jim.   of  that  wliich  is  right,  not  only  to  Juftice,  but  like- 

^  n-%^  ^^^^  ^^  ^^'  Other  Moral  Virtues ;  the  which  is  no  more 

but  the  DiBate  of  right  Reafon  founded  i?i  the  Soul  of 

Man,  f/jewing  the  Neeefjity  to  be  infofne  A5i  by  its  Con-* 

*venience  and  Difconvenie?ice  in  the  ratiojial  Nature  in 

.  Man,  and  consequently  that  it  is  either  forbidden  or  com-- 

manded  by  the  Author  of  Nature,  who  is  the  Eternal 

Creator  of  all  'Things.     And  as  God  hath  imprinted 

this  univerfal  Law  in  the  Minds  of  all  Men,  fo  hath 

he  given  Men  Power  (Society  being  admitted)  to 

eftablifh  other  Laws,  which  proceed  from  the  Will, 

the  which  is  drawn  from  the  Civil  Power,  that  is, 

from  him  or  them  that  rule  the  Commonwealth,  or 

Society  of  Freemen  united  for  their  common  Benefit, 

.  (which  is  called  the  Laws  of  Nations)  and  which  by 

the  Will  of  all  or  many  Nations,  hath  received  Force 

Vnfque%  2.      to  oblige,  and  is  proved  by  a  continued  Ufe  and  Te- 

Controv.ii,.\.  ftiniony  of  authentick  Memorials  of  learned  or  Ikilful 


Now  by  the  Laws  of  Nature  every  Man  is  bound 
Florentius  3.  to  profit  anothcr  in  what  he  can,  nor  is  the  fame  only 
fart.  tit.  22.  jj^^fui  \.^i  commendable^  fo  true  was  that  faying, 

Leg.  s'er^'ius  Nothing  is  more  ferviceable  to  Man  than  Man  :  But  if 
D.  ^fe/er^\  .Man  fl:iall  neglect  this  immutable  Law  in  the  aiding 
^Cuao  Offic.  and  afiUling  his  Fellow  Citizen,  and  inquire  and  dif- 
itb.w.depa-'^xxx,^  wliy  God  hath  laid  this  Neceffity  upon  him; 
and  when  Opportunity  gives  leave  to  take  the  Benefit 
of  Wind  or  Tide  (in  order  to  his  furnifhing  himfelf 
or  Neighbour  with  thofe  things  that  adorn  human 
Life)  to  difpute  the  Caufes  of  their  Flux  and  Reflux, 
and  how  they  vary  and  change ;  he  not  only  offends 
the  Laws  of  Nature,  but  affumes  a  Power  of  defbroy- 
ing  Society,  and  confequently  becomes  (at  the  leafl) 
a  wilful  Tranfgrelibr  of  the  Laws  of  Nations. 


net  10. 

To  de  KE  A  DE  R.  v 

And  though  the  Eternal  Power  hath  fo  eftablifhed 
this  Neceflity  in  Mankind,  that  every  Man  fhould 
Hand  in  need  of  another  Man,  yet  fo  great  a  Providence 
is  over  induftrious  Men,  that  fcarce  any  Man  not  dif- 
abled  by  Nature  or  Accident,  Sicknefs,  Impotericy, 
and  the  like,  but  by  his  Induftry  and  Pains  may  earn 
more  than  w^ould  fupply  his  Neceffities ;  and  fo  much 
as  any  Man  gets  by  being  truly  induftrious  above 
what  fupplies  his  Neceflities,  is  fo  much  beneficial  to 
himfelf  and  Family,  as  alfo  an  enriching  to  that  King- 
dom or  State  where  he  relides :  From  whence  it  is, 
that  all  Mankind  (prefent  or  to  come)  are  either  Tra- 
ders by  themfelves  or  others ;  and  the  Ends  defigned 
by  Trade  and  Commerce,  are  Strength,  Wealth  and 
Imployment  for  all  forts  of  People,  (where  the  fame 
doth  moft  flourifh)  the  End  tending  to  the  Advance*  Cdh  z.  hf. 
ment,  Opulency  and  Greatnefs  of  fuch  a  Kingdom  ovM  28. 

Conjiantimple  (the  Throne  once  of  Chriftendom)  Anno  1453. 
having  been  facked  by  Mahomet  the  Second,  became  Hiftof^'oTthe 
a  Place  of  Defolation  as  well  as  Horror,  yet  he  by  Monarchy, 
granting  a  free  Trade  and  Religion,  foon  after  repeo- 
pled  that  great  (but  unhappy)  Spot.    iMor  did  Sile?nui 
tread  amifs  in  following  the  Steps  of  his  victorious 
PredeceiTor,  when  having  the  like  Succefs  on  Tanris 
and  Grajid  CairOy  he  tranflated  the  Ferjian  and  Egyp- 
tian  Artificers  and  Traders  to  that  repeopled  City, 
following  the  Example  of  the  Roman  Virtues.     Nor 
did  our  victorious  Third  Edward  deem  it  an  A6t  un-  Mirror,  cap.^: 
befeeming  his  great  Wifdom,  when  he  brought  in  the  ^fj^h  ^^. ... 
Walloons^  whofe  Induftry  loon  eftablifhed  the  Woollen 
ManirfaCture,  he  vouchfafing  to  give  no  lefs  a  Secu- 
rity for  the  enjoying  their  then  granted  Immunities 
and  Privileges,  than  his  own  Royal  Perfon.  Nor  did  ^-^^  ^^^. 
that  politick  Princefs  fhut  her  Ears  from  embracing  den"^  Q^£li^ 
the  Offer  of  thofe  diftreffed  Burgmdiam  (after  the  ^^^'g'^''  '^"' 
,  Example  of  her  Great  and  Royal  Predeceflor)  who  A.EMeteran. 
fought  Refuge  in  her  Dominions  from  the  rigid  Se-  f/>''-  ^^k- 

a  verity      ^ 

vi  r^   //5^   R  E  A  D  E  R. 

verity  of  the  long-bearded  Aka^  who  planting  them- 
felves  by  her  Appointment  at  Norwich^  Colchejler^  Caii- 
terbury^  and  other  Towns,  have  of  thofe  Places  (then 
only  Habitations  for  Beggars)  raifed  them  now  in 
Competition  with  (if  not  excelling)  all,  or  mofl:  of 
the  Cities  in  'England^  for  Riches,  Plenty,  and  Trade.- 
Nor  need  we  run  into  the  Hiilory  of  earlier  Times  to 
give  an  Account  of  the  many  Kingdoms  and  States 
that  have  rifcn  by  Induftry  and  Commerce  j  'tis 
enough  if  we  call  our  Eyes  on  our  Neighbour  the 
Hollander^  a  Place  by  relation  of  Orfellius^  not  much 
bigger  than  TorkJJnre^  and  fuch  a  Spot,  as  if  God  had 
referved  it  as  a  Place  only  to  dig  Turf  out  of,  for  the 
accom.modating  thofe  Countries  wherein  he  hoards 
up  the  Miferies  of  Winter,  it  affording  naturally  not 
any  one  Commodity  of  ufe ;  yet  by  Commerce  and 
Trade  (the  Daughters  of  Induftry)  it  is  now  become 
the  Store-houfe  of  all  thofe  Merchandizes  that  may 
be  coiled:ed  from  tlie  rifing  to  the  fetting  of  the  Sun, 
and  gives  thofe  People  a  Name  as  large  and  high  as 
,^  the  greateft  Monarch  this  Day  on  Earth  :  Nor  need 
we  pafs  out  of  Chriftendom  to  find  Examples  of  the 
like,  wlien  Veiiice^  Genona^  Lubecky  Embderiy  and  the 
reft  of  the  Hanjiatick  Towns,  once  the  Marts  of  the 
Vv'orld,  till  Sloth,  Luxury,  and  Ambition,  got  with- 
in their  Walls,  and  drove  it  to  Ports  of  Induftry,  that 
have  iince  kified  and  embraced  it,  the  which  this  Ifle, 
by  the  Influence  of  his  Royal  Majefty,  hath  been  no 
fmall  Sharer  in. 

Hence  it  is,  that  Trade  and  Commerce  are  now 
become  the  only  Object  and  Care  of  all  Princes  and 
Potentates,  its  Dominion  not  being  acquired  l3y  the 
,  ruful  Face  of  War,  whofe  Footfteps  leave  behind  them 
the  deep  Impreffion  of  Mifery,  Devaftation  and  Po- 
verty, they  knowing  the  Return  of  Commerce  is 
Riciies,  and  Plenty  of  all  things  conducing  to  the  Be- 
nefit of  human  Life,  and  fortifying  their  Countries 
with  Fveputution  and  Strength. 


To  the  READER.  vii 

.It  was  Trade  that  gave  occafion  to  the  bringing  of  ^'^'^^  ^666. 
thofe  mighty  Fleets  to  Sea,  as  if  God  had  left  it  to^^^^*  ^^'^^' 
them  to  decide  by  force,  (wherein  no  Age  or  Time 
'caix  witnefs  the  like)  the  Empire  of  the  World:  Hence 
It  was,  (the  Advantages  being  found  which  arife  by 
Commerce)   that  Navigatioji  got  its  Birth  into  the 
World,  reducing  the  feveral  Nations  on  the  Earth  by 
that  means  to  be  even  as  one  common  Family ;  and 
when  in  this  Ifle  we  were  ^\'iz\\  in  the  State  of  Cani- 
bals,  it  brought  in  a  People  that  inftruded  us  in  Arts, 
Policies  and  Manners,  and  taught  us  Actions  no  \zi%  Camden. 
Virtuous  than  thofe  themfelves  followed  :  And  altho* 
long  and  difficult  it  was  before  that  rnighty  People 
could  be  broudit  over  to  have  Thoug-hts  of  the  Ad-  -^^^A^  omnis 
^vantages  arifing  from  Commerce  and  Navigation  (they  /J//^J[^^fays** 
only  propounding  to  themfelves  Blood,  Slaughter, /'^^^, /^^  i. 
Conqueft,  the  Riches  and  Spoils  of  Nations ;)  yet  ^^'""  ^* 
when  they  entered  into  the  Carthaginian  War,  a  Though  they 
Quarrel  with  a  People  not  worth  the  Oppofition  of  ^^^  looShips, 
a  1  ribune  (as  they  thought)  finding  that  neither  Tri-  under  Cajus 
bune  nor  Confide  no  nor  the  Flower  of  the  Roman  fjfc^jj^"^ 
\Army  was  able  to  withftand  them,  or  to  prevent  the  as  PoUh^s 
Invaiion  of  their  Country,  and  they  in  the  very  Bowels  obferves. 
of  the  fame,  put  it  to  the  Queftion,  Kome  or  Carthage 
Miftrefs  of  the  World ;  they  began  to  confider  whence 
ind  from  what  Caufes  thofe  unknow^n^^/V^;zi  ihould 
withftand  the  Confcript  Fathers  and  Power  of  Ro?72ei 
and  fhould  dare  to  difpute  v/ith  thofe  that  had  led  fo 
many  captivated  Kings  in  Triumph,  and  brought  fo 
many  haughty  Nations  to  truckle  under  their  vid:o- 
rious  Eagles ;  at  laft  they  found  it  was  Commerce  and 
Navigation  that  gave  Power  and  Force  to  that  mighty 
People  :  Then  it  was  that  Rome  began  to  know  that 
Rome  could  not  be  Rome  without  a  naval  Force -^  the 
which  and  to  redeem  their  bleeding  Honour,  they 
foon  haftened  and  equipt,  great  as  their  Competitors ; 
afterwards  Argejitum  being  won,  Carthage  became  no 
more  impregnable  \  after  which  with  Peace  they 

a  2  plowed 

viii  lo  the  R  E  A  D  E  R. 

*  Now  the  plowed  the  neighbouring  Streights  to  Tinges^  *  Gades^ 
'^cr'lvTan-  ^"d  ^^^  Herculean  Streights ;  nor  could  any  thing  be 
gier.  too  difficult  aftcrwards,  till  they  arrived  on  the  Britijh 

Shore,  where  beholding  her  ample  Bays,  Harbours, 
Rivers,  Shores,  and  Stations,  (the  Jewels  and  Orna- 
ments of  that  Spot,  and  having  made  a  Conqueft  of 
the  fame)  they  fgon  cultivated  into  our  rude  Natures 
the  Spirit  of  Commerce^  teaching  and  inftrudling  us  in 
thofe  polite  Ways  that  fortify  a  Kingdom  by  Naval 
Force,  as  the  Standard  and  undeniable  Marks  of  Em- 
pire^  and  by  aiding  and  teaching  us  in  the  driving  on 
a  continued  and  peaceable  Tra6l  of  Commerce^  we 
have  fathomed  the  unknown  Depth  of  the  Indian 
Shores,  uniting,  as  it  were,  Extremes,  made  the  Poles 
to  kifs  each  other,  teaching  us  thereby,  that  it  was 
not  the  vaft  Immenfities  of  Earth  that  created  Em- 
pire, but  Situation  accompanied  with  Lidujiryy  Com- 
merce  and  Navigation^  that  would  enable  a  People  to 
give  Laws  to  the  World  :  In  the  Purfuit  of  whofe 
Virtues,  this  Nation  hath  not  been  wanting,  and  of 
f6!lowing  their  great  Direftions  in  the  enlarging  our 
Fleet  3  for  they,  when  they  advanced  their  Eagles  on 
the  BritiJJo  Shore,  found  us  not  then  without  Ships 
of  Force,  time  having  not  been  fo  envious  to  this 
>%tr(ih,  lib.  3.  Ifland,  as  to  eat  out  thofe  Records  wherein  mention 
is  made,  tliat  the  B?itains  accompanied  the  Cymbriaris 
and  Gf.uls  in  their  memorable  Expedition  to  Greece^ 
long  before  the  Incarnation  of  the  World's  Saviour  5 
and  it  was  from  that  Center  that  the  mighty  Ccefar  firfl 
drew  his  Line,  and  took  Thoughts  of  plowing  the 
Ocean  to  find  out  that  warlike  People  to  face  his  vic- 
torious Legions ;  when  having  landed,  and  finding  a 
Place  adorned  by  Nature  beyond  any  thing  that  could 
be  called  great,  taught  us  to  maintain  the  Superiority 
of  Dominion,  that  no  neighbouring  Nation  fhould 
frequent  our  peaceable  Shores,  and  thofe  Merchants 
that  came  were  affigned  Places  to  drive  their  Com- 
merce and  Traffick,  jealous  that  any  neighbouring 


To  //5^  RE  A  DE  R.  ix 

Rival  jfhould  kifs  his  beloved  Britaiinia  but  a  Romany  ^^^is  Towns 
and  for  whom  he  fetched  fo  long  and  tedious  a  "^e  Marffor^ 
March  \  thus  in  our  Infancy,  teaching  us  both  De-  thofe  neigh- 
fence  and  Commerce.     And  when  that  mighty  Em-  ^^^""^  ^^^' 
pire  began  to  decline,  and  thofe  remaining  Romans 
began  to  moulter  and  mix  among  the  Natives,  and 
to  become  as  one  People  again,  then  Sloth,  Luxury 
and  Idlenefs  (the  Forerunners  of  Ruin)  invaded  our 
Shores  by  a  fatal  Stupidity,  which  fufFered  our  floating 
Caftles  (Bulwarks  of  the  Kingdom)  to  rot  in  their 
negled:ed  Brine,  and  our  Ports  to  be  furveyed  by  Fo- 
reign People  3  which  fupine  Negligence  foon  fubjed:- 
ed  us  a  Prey  to  our  ambitious  Neighbours,  who  no    ' 
fooner  finilhed  their  Conquefls,  and  fheathed  their 
devouring  Swords,  but  each  (as  if  infpired  by  the  Ahraha?nus 
very  Genius  of  the  Place)  equip'd  out  Fleets  great  as  ^^;^^^^;^^^^^ 
their  Competitors,  to  fecure  what  they  had  fo  dearly  ru^n  Ugibus, 
won,  of  whom  Story  makes  mention  of  the  mighty  '^'|,"^l  °^'' 
Arthur^  no  lefs  famous  in  his  warlike  Atchievements,  lambard, 
than  in  leading  his  Squadrons  ^s  (ar  2iS  Iceland,  bring- 
ing thofe  Northern  People  to  pay  Obeyfance  to  his 
*vid:orious  Standard,  and  acknowledge  him  as  their 
Tupream  Lord,  even  from  the  Britijh  to  the  Ruffian 
"Trafts,  and  by  him  left  to  famous  Edgar ^  who  no  inferted  in 
%oner  found  his  undoubted  Right,  but  refolved  to  LegesEdivardi 
vindicate  that  Dominion  which  his  Royal  PredecefTor  ^ards  con- 
had  with  fo  much  Glory  acquired,  and  with  fo  great  firmed  by  the 
Care  communicated  and  remitted  down  to  his  Sue-  j^ZZT  ^-'^ 


^  cefTor :  With  no  lefs  a  Number  than  four  hundred  ivir.  sMn's 
^  Sail  of  Ships  did  that  mighty  Prince  at  once  cover  the  ^'^^''^  ^^'^'*', 
neighbouring  Ocean,    making  them  the  P or tct^l/h  cap! the  lo.  to 
of  this  Ifle  and  the  adjacent  Seas,  by  which  he  vin-^'^^e  i6. 
dicated  his  Dominions  on  the  Waters,    and  gave 
^Laws  in  the  Chambers  of  his  Empire :  Nor  did  his 
SuccefTors  Canutus  (whom  Record  makes  mention, 
that  having  laid  that  ancient  Tribute,  called  Dane- 
geldy  for  the  guarding  of  the  Seas,  and  Sovereignty 
of  them,  was  emblematically  expreifed,  fitting  on  the 

a  3  Shore 

X  'To   //5^   R  E  A  D  E  R. 

Shore  in  his  Royal  Chair,  while  the  Sea  was  flow-' 

Matth.wefim. ing,  fpcaking,  Cu  tiicae  Bttionis  eg,  $  tetia  ill  qiut 

iTc''^^'  f^^^^  ^^'  ?^0  %^^^^>  Althrcd,  EtheJfred,  forget 
,^^//^«'i  M«r^  the  Afferticn  of  their  great  Predeceflbrs  Dominion  and 
ciaufum,  lib.  Sovereignty  of  the  fame,  under  no  lower  a  Style,  than 

^'cap.iu    gjyp^^^^^^  %is\xs^  aiits  ©o\)ernojfi  of  tfie  SDccait 

fUtrOttnrtfnO:  tf)C  'Bjitift)  aijCJC,  never  fo  much  as 
contefted  by  any  ^Nation  whatfoever,  unlefs  by  thofe 
that  attempted  the  Conqueft  of  the  entire  Empire,  in 
which  that  becam-e  fubjeft  to  Fate  as  well  as  the  other 
of  the  Land  :  Nor  did  the  fucceeding  Princes  alfo  of 
the  Norman  Race  ftart  or  wave  that  mighty  Advan- 
tage in  their  fucceffive  Claims,  and  maintaining  their 
Right  to  the  adjacent  Sea  ;  as  appeared  not  long  after, 
by  that  famous  Accord,  made  between  'Edward  the 
Firft,  and  the  French  King  Philip  the  Fair^  calling 
Coh\.inji.    him  to  an  Account  for  Piracies  committed  within 
joL  142.        ^^  BritiJJo  Seas ;  the  Submiffion  of  the  Flemings  in 
open  Parliament  in  the  Second  Edward'^  Reign ;  and 
the  Honour  or  Duty  of  the  Flag^  which  the  politick 
King  fohji  had  above  four  hundred  Years  fince  chaP 
Inter  Legei     Icngcd  by  that  memorable  Ordinance    at  Hafling^ 
Marinas  fiih   therfe  dccrccd  to  take  place  unlverfally,  not  barely  as 
Regis  foban.  ^  (£li}l!itp,  but  as  a  Eitjljt,  to  be  paid  cum  debita 
?•  rroerentiay  and  Perfons  refufing  to  be  afTaulted  and 

taken  as  Enemies,  the  fame  not  only  to  be  paid  to 
. "  whole  Fleets  bearing  the  Royal  Standard,  but  to  thofe 
;  Ships  of  Privilege  that  wear  the  Prince's  Enfigns  or 
Colours  of  Service  :  Nor  was  this  barely  a  Decree 
X^ritten,  but  nobly  aflerted  by  a  Fleet  of  no  lefs  than 
500  Sail  in  a  Voyage  Royal  of  his,  wherein  he  failed 
for  Ireland^  in  his  way  commanding  all  VeiTels  which 
he  met  in  the  eight  circumfluent  Seas  to  pay  that 
Duty  and  Acknowledgment.     Nor  v/as  the  Third 
Edward  flow  in  following  the  Steps' of  his  wife  Pre- 
■  deceflbrs,  Vv'hen  he  equip'd  out  a.Pto  of  no  lefs  than 
700  (though  on  another  Occafion)  vv'ith  200  of  which 
he  vanquiiiied  a  Fleet  of  twice  the  Number  befort 


7^   /y5^   R  E  A  D  E  R.  xi 

Calais^  to  the  Lofs  of  30,000  French.  Nor  did  our 
vidiorious  Conqueror  of  the  Sepulchre,  the  Great 
Richard^  in  his  Return  from  the  Holy  Land,  want  a 
Navy  Royal  to  attend  him  home,  by  the  Force  of 
which  he  took  and  deftroyed  near  100  more  Ships  of 
the  French,  And  look  we  but  into  the  mighty  Ac- 
tions of  the  fucceeding  Princes,  we  fliall  find  that  all 
that  ever  defigned  Empire  were  zealous  in  the  En- 
couragement of  Navigation,  looking  on  that  Axiom 
as  undeniable,  %//  Mare  tenet ^  eum  necejfe  ejje  re-  Cic.  adJtth, 
Tium  potiri^  and  that  without  which  the  Britijh  So-  ^'  ^°"  ^^'^^ 
vercignty  is  but  an  empty  Title. 

Nor  ought  alone  the  Praifes  of  tliofe  great  Mo- 
narchs,  whofe  mighty  Care  had  always  been  to  pre^- 
ferve  the  Reputation  of  their  Empire  in  their  Mari- 
time Preparations,  to  be  remembered,  but  alfo  thofe 
of  our  Inhabitants,  who  always  have  been  as  indu- 
ftrious  to  follow  the  Encouragement  of  thofe  Princes 
under  whom  they  flourifhed,  and  who  with  no  lefs  ,^^ 

Glory  and  timely  Application  in  Traffick,  did  con- 
ftantly  follow  the  Examples  of  thofe  oiGe7ioa,  Por^ 
tiigaly    Spaniards^    Caftilians,    and  Veiietians,  whofe 
Fame  in  Matters  of  Commerce  ought  to  be  enrolled 
in  Letters  of  Gold,  fince  the  Ages  to  come,  as  well 
as  prefent,  having  been  doubly  obliged  to  their  Me- 
mory, the  third  of  which  making  ufe  of  a  difcon- 
tented  Native  of  this  Ifle,  the  famous  Columbus,  who,  Born  in  Eng^ 
prompted  by  that  Genius  that  naturally  follov/s  a  na-  ^^^^^  ^^^  ^®" 
tive  wife  Man,  difcovered  a  new  World,  in  whofe  Genoa. 
Expedition  he  fathomed  unknown  Paths,  and  detedt-  , 
ed  the  AntilleSy   Cuba,  and  'Jamaica,  &c.  and  the 
T^erra  Fi?'ma,  of  the  America)!  Shore,  who  taking  his 
Conjectures  from  the  fpiring  of  certain  Winds  from 
ihe  IVejlern  Points  by  ftrong  Impulfe,  accompanied 
with  that  Philofophy  he  attained  to,  concluded  fome 
Continent  muft  needs  be  hid  in  thofe  unknown  Parts  ; 
his  Service  being  firft  offered  to  his  Prince,  and  re-  Hen.  7. 
fufed,  he  was  foon  after  entertained,  purely  on  the 

•     a  4  Faith 

xii  7J  //5^  READER- 

CampaneL      Faith  of  that  noble  Princefs  Ifabella  of  ^ain^  who. 
-y-    'y/^«-  £qj.   j^^ooo  Crowns  (for  which  ihe  engaged  her 

?'€'wels)  received  not  long  after,  as  many  Tuns  of 
reafure,  and  to  her  Huftand's  own  Ufe,^  in  eight  or 
nine  Years  Time  came  above  fifteen  hundred  thoufand 
of  Silver,  and  three  hundred  and  fixty  Tuns  of  Gold. 
Thus  Ingenuity  encouraged,  though  in  one  fingle 
Perfon,  hath  occafioned  Wonders,  and  from  a  fmall 
Kingdom  (as  Spain)  it  hath  fince  raifed  its  Head,  in 
a  Condition  of  bringing  all  thofe  many  Kingdoms,  and 
vaft  Immenfities  of  Earth  which  they  poflefs,  under  ^ 
their  Proteftion ;  putting  them  once  on  Thoughts  of  no 
lefs  than  an  Universal  Monarchy.   We  need  only 
mention  Sebajiion  Chabot^  a  Native  of  BriJiolJ  who  dif-    | 
covered  Florida^  and  the  Shores  oi  Virginia^  dedicated 
to   that   Virgin   Princefs   Elizabeth;!  Thorriy    Elliot y 
Oweriy  Gwynedy  Hawkins^  Cavendijlo;  Furbijhery  Da^ 
visy  Stadforiy  Ralegh y  and  the  incomparable  Drake y 
who  was  the  firfi:  (agreed  univerfally)  of  any  Mortal 
to  whom  God  vouchfafed  the  ftupendous  Atchiev- 
•  %ients  of  incompaffing  not  this  New  World  alone,  but^ 
New  and  Old   together,  twice  embraced  by  that  I 
mighty  Man,  who  firft  making  up  to  Nombre  de) 
DioSy  got  fight  (with  Tears  of  Joy)  of  the  Southern  ^ 
Seas,  the  w^hich  in  five  Years  after  he  accomplifh-  i 
ed,  paffing  through  the  Magellan  Str eights  towards"! 
the  other  IndieSy  and  doubling  the  famous  Promon-? 
tory,  he  circumnavigated  the  whole  Earth. 

Nor  ought  that  truly  worthy  Captain  Sir  John 
Narborciigh  be  precluded  from  having  Place  after  the 
mighty  Drakey  he  having  not  long  fince  paflTed  and 
repafled  the  Magellan  StreightSy  by  vl^hich  that  wor- 
thy Perfon  hath  performed  that  Atchievement,  which 
was  never  done  by  any  Mortal  before.  To  reckon 
up  the  particular  Actions  of  "John  Oxenham  (a  Sharer 
in  that  mighty  Performance  of  Drake)  who  drawing 
his  Vefl^el  up  to  Land,  and  covering  the  fame  with  . 
Boughs,  paffed  the  unknown  Paths  of  Land  fronv^ 


To  the  READER,  xiii 

Timbre  de  Dios  to  the  South  Sea,  and  there  building 
a"  Finance,  enters  the  Ifle  of  Pearls^  and  from  the 
Spaniards  takes  a  Treafure  almoft  beyond  Credit ;  of 
the  undefatigable  Diligence  of  Willoughby^  Burroughs^ 
Chancelery  Buffin^  Furbijher^  James  Middleton^  Gil-- 
bert  Cumberland^  who  plowed  up  the  North-Eajl  and 
North-Weji  Cathaian  and  China  Paflage  j  of  Jones  and 
Smithy  whofe  Fortune  and  Courage  was  great  in  thofe 
,  Parts ;  of  Poole^  who  found  the  Whale  Fifhing  ;  of 
'  Captain  Bennett  the  firft  Difcoverer  oi  Cherry-land :,  of 
Gillian  and  of  Pett^  and  Jackman  that  pafled  the  Vai-- 
gates,  Scythian  Ices,  and  the  River  of  Ob,  as  far  as 
Nova  Zembla  ;  nor  of  the  famous  Davies  and  Woody 
who  had  penetrated  to  86  Degrees  of  Latitude,  and 
almoft  fet  their  Feet  on  the  Northern  Pole,  and  for 
truly  valiant  the  famous  Monk,  Blake,  Lawfon,  MineSy 
Sandwich ,  OJfory ,  and  the  never-to-be-forgotten 
Spragg,  and  living  his  Royal  Highnefs  Tork's  vidto- 
rious  Duke,  and  the  brave  Rupert,  Men  whofe  Cou- 
rage  and  glorious  Aftions  as  well  in  Battles  as  in  the 
atchieving  of  Difcoveries,  and  pointing  out  to  Places 
for  an  immenfe  Improvement  in  Navigation  and 
Commerce,  ought  to  be  inroUed  in  the  Temple  of 
Fame  as  Monuments  to  fucceeding  Ages,  of  their 
mighty  and  laborious  Travails  and  Induftry.  The 
Confideration  of  all  which  gives  fome  Sparks  of  En- 
couragement to  the  writing  the  enfuing  Trad,  efpe- 
cially  when  reflecting,  that  among  all  Nations,  there 
is  a  Common  Law  which  governs  the  mighty  Thing 
of  Navigation  and  Commerce ;  I  had  fome  Impulfes 
more  than  ordinary  to  induce  me  to  the  fame,  efpe- 
cially  at  a  time  when  Navigation  and  Commerce  were 
never  (from  the  Ereftion  by  Divine  Inftind:  of  that 
mighty  Prototype,  the  Ark  to  this  prefent  Age)  in 
greater  Efteem  than  now,  and  by  which  we  have 
found  vaft  and  great  Eafements  and  Difcharges  from 
^ofe  royal  and  juft  Rights  and  Dues  which  now  and 
Ipf  old  were  juftly  due  to  thofe  that  governed  this 

Empire ; 

XIV  To  the   READER. 

Empire  ;  therefore  ought  by  all  ways  and  means  to 
be  fortified  and  encouraged,  be  it  by  whatfoever  Art, 
Science  or  Thing  that  does  in  the  leafl  point  out  to- 
wards   the   fame.     Nor   was   it   then   wanting   in 
Thoughts  to  promote  and  incite  the  ProfelTors  of  the 
Law,  raifing  and  ftirring  up  their  Genius  to  the  Ad- 
vancement of  the  Law  in  this  Point ;  and  though  I 
believe  many  have  wifhed  that  fuch  a  thing  might 
be,  yet  none  that  I  can  find  have  ever  yet  attempted 
the  fame  :  Nor  is  it  poffible,  unlefs  thofe  things  which 
are  by  Law  conflitiited  and  known^  be  rightly  feparated 
from  thofe  that  are  natural',  for  natural  Law  is  im- 
mutably and  always  the  fame,  therefore  may  eafily 
be  coUedted  into  Art :    But  things  that  come  from 
Conftitution,  becaufe  they  often  vary  and  change,  and 
are  divers  in  divers  Places,  are  put  without  Art,  as. 
other  Precepts  of  Laws  pofitive  or  municipal  -,  hence 
it  was  that  the  Conftitutions  and  Laws  of  Rhodes^  for 
their  Juftice  and  Equity,  got  footing  amongft  the 
Romans  as  well  as  amongft  other  the  bordering  Peo- 
ple on  the  Mediterranean^  Rhodioriim  iifq-y  rerum  me^ 
llamlfro      mortani  difciplmc^   Navalis   &  gloria  reraanfit -,  yet 
^^'      when  they,  as  well  as  the  Romans^  became  fubjed;  to 
Fate,  they  then  remained  only  as  Examples  of  Juftice 
h  nd  M.  Ser-  and  Reafon  for  others  to  imitate  and  follow  :  An  obfe- 
jeant  Caiiis     quious  Adorcr  of  which  was  the  great  Juftinian^  who 
deribod  of  the  caufcd  them  to  be  inferted  into  the  Civil  Law  ;  and 
ancitnt  Civil  though  they  obtained  a  Place  amongft  others  of  the 
and  iModern    ^^cient  Rojnans  as  well  as  the  Modern,  yet  have  they 

Roman  Law  .  ^        '   -^  J 

reduced  into  not  all  received  by  Cuftom  fuch  a  Force  as  may  make 
cnc,  r.nd  they  ^-^^^y^  Laws,  but  remain  only  as  they  have  the  Au- 
two  La wr,  one  thority  in  Shew  of  Reafon,  which  binds  not  always 
Civil,  and  the  alike,  but  varics  according  to  Circumftances  of  Time, 
mirburoniy  Pl^^ce,  State,  Age,  and  what  other  Conveniences  or 
one,  that  is,  Inconvenicnccs  meet  with  it ;  nor  have  thofe  Laws, 
^VulwTKclk-  inftituted  at  Oleron^  obtained  any  other  or  greater 
iQg  on  the  Force  than  thofe  of  Rhodes  or  Imperial,  confidered 
StatuteofSew-  ^^^jy  fj-Qj^^  ^^  Rcafon  the  which  are  not  become 

/./.  51.  Laws 

To  the   READER.  xv 

Laws  by  any  particular  Cuftom  or  Conftitution,  but  The  Article  of 
only  efteemed  and  valued  by  the  Reafons  found  in  5"^^""^  \"" 

J  1       r>   ?•  nexsdtothem 

them,  and  applied  to  the  Cale  emergent.  m  12  Ed.  i. 

'Tis  true,  that  in  Rome  and  fome  other  Parts  of  T^^  Inquifi-  ^ 
Italy  and  Ge?'man)\  and  the  Kingdom  of  Portugal:,  in  boroughT^^E, 
all  thofe  Cafes  wherein  the  municipal  Ordinances  of  3- ^^^'"f  375- 
thofe  Countries  have  failed  in  providing,  the  Imperial  qu^rvTranfiat- 
Laws  (if  the  Cafe  be  fuch  as  that  it  7io?i  Tragiia  pec-  ed  by  Rough- 
cado,  or  be  not  fpiritual)  is  there  made  of  force ;  but  ^''"^ 
there  is  no  other  Nation,  State  or  Republic  can  be 
named,  where  any  Part  of  the  Body  of  thofe  Impe- 
rial Laws  hath  obtained  the  juft  Force  of  a  Law, 
otherwife  than  as  Cuftom  hath  particularly  induced 
it ;  and  where  no  fuch  fettled  Cuftom  hath  made  it 
a  Law,  there  it  hath  Force  only  according  to  the 
Strength  of  Reafon  and  Circumftance  joined  with  it, 
or  as  it  fhews  the  Opinion  and  Judgment  of  thofe 
that  made  it,  but  not  at  all  as  if  it  had  any  com- 
manding Power  of  Obedience,  that  is,  valet  pro  ra- 
tioned non  pro  induBo  jure  5  pro  ratione  quantum  Reges^  SeUenh  Tl- 
Dynaftce  &  Reipublica  intra  potejiatis  fuce  fines  valere^^^^  °/-l^^ 
patiuntur  :  And  for  Spain  it  is  obferved,  Hifpani  du-  cap.  \lt, 
plex  habent  Jus,  folum  Canoniciim  fcilicet  &  Regium  ; 
Civile  e?iijn  (meaning  the  Imperial  Laws)  7ion  habet 
vim  L'egis^  fed  rationis.     And  lince  this  Kingdom,  as 
well  as  moft  others,  being  free  from  all  Subjection  to 
the  Empire,  having  a  conftituted  or  knov/n  Law  of 
its  own,  excludes  all  Imperial  Power  and  Laws,  other- 
wife  than  as  Cuftom  hath  varioufly  made  fome  Ad- 
miffion,  I  applied  myfelf  to  the  Colle6lion  of  fuch 
Matters,  according  to  my  inconfiderable  Judgment, 
as  are  either  conftituted  by  the  Supream  Authority  of 
the  Three  Eftates,  or  that  which  hath  in  fome  mea- 
fure  obtained  by  continued  Cuftom  the  Force  of  Law 
in  reference  to  Matters  Maritime,  and  of  Commerce, 
as  well  in  Cafes  publick  as  private. 

By  the  firft  Part  of  which  I  thought  it  necefliiry, 
fince  Nature  by  Traffick  hath  made  us  all  Kinfmen, 
to  confider  and  examine  upon  what  Grounds,  and 


xvl  To  de  RE  AD  E  R. 

in  what  manner,  Commerce  was  firft  procured  and 
eftabliflied,  which  is  by  the  Laws  of  Leagues,  Em- 
baflies,  and  the  like,  which  is  a  thing  fit  to  be  known  -, 
{o  likewife  of  what  may  interrupt  the  lame,  and  like- 
wife  of  thofe  that  have  any  reference  to  Seafaring 
Caufes  in  Matters  Civil. 

In  the  Profecution  of  this  Worlc^  I  have  taken  care 
to  refer  thofe  things,  which  pertain  to  the  Laws  of 
Nature^  unto  Notions  fo  certain,  that  no  Man,  with- 
out offering  of  Violence  to  himfelf,  may  deny  them ; 
and  to  afcertain  the  Truth  of  fuch,  I  have  ufcd  the 
Teftimonies  of  fuch  Authority  as  in  my  weak  Judg- 
ment are  of  Credit  to  evince  the  fame ;  and  as  to 
that  Law,  which  we  call  the  Law  of  Will,  or  Com- 
mon Confent,  or  the  Law  of  Nations,  for  that  which 
cannot  by  fure  Confequence  be  deduced  out  of  iiire 
Principles,  and  yet  appears  every  where  obferved, 
muft  needs  have  its  Rife  from  free  Will  and  Confent, 
which  is  that  which  is  called  the  Law  of  Natmis ; 
both  which  (as  much  as  poffible)  hath  been  endea- 
voured to  be  kept  afunder  where  the  Matter  hath  re- 
quired it.  And  for  the  Civil  Law,  I  have  afcertain- 
ed  the  feveral  Authorities  which  I  have  made  ufe  of, 
that  is,  of  the  Roma7is^  into  three  forts,  the  Pafideois^ 
the  Codes  of  Theodofius  and  fiiftiniaii^  the  Novel  Con- 
ftitutions^  and  thefe  moft  excellent  furifconfults  that 
have  by  their  Profoundnefs  of  Judgment  illuftrated 
the  obfcure  Paths  of  the  fame  Law ;  the  third  thofe 
moft  excellent  Perfons  who  joined  Policy  to  Law,  as 
Grotius^  Ralegh^  Bacon^  Selden^  and  the  like.  Of 
other  Pieces,  that  of  Shardius^  intituled.  Leges  Na- 
*vales  Rhodioruniy  (3  fekotce  Rhodiorum^  Pefrus  Pekhis 
the  Zcalander^  Locinius^  Viniiis^  that  of  Okf^on  col- 
leded  by  Garafas  alias  Ferrandy  and  Cleriach 

As  to  thofe  Matters  that  have  paffed  the  Pikes  at  the 
Common  LaWy  I  have  as  carefully  as  poffible,  referred 
to  their  feveral  Authorities.  In  the  whole  Work  I 
have  no  where  medled  with  the  Admiralty  or  its  Ju- 


To   the   READER.  xvii 

rifdidtion  (unlefs  by  the  by,  as  incidently  falling  in  with 
other  Matters)  knowing  well,  that  it  would  have  been 
impertinent  and  fancy  in  me  to  enter  into  the  Debate 
of  Imperium  meruniy  Imperium  mixtum^  JurifdiBio  it  is  called 
Jimplex^  and  the  like,  and  of  the  bounding  out  of  Ju-  ^f^/''-"'"*  ^^' 
rifdidtions,  which  in  effedt  tends  to  queftion  the  Go-  ceeds  froin  the 
vernment,  and  trip  up  the  Power  that  gives  Laws  and  ^"^^  °"^y  *^^ 
Proteftion  to  us ;  fince  all  that  can  be  faid,  as  well  on  no^  from^an/ 
the  one  fide  as  the  other,  hath  been  fo  fully  and  learn-  fig>»t  inherent 
edly  handled  and  treated  of  by  feveral  worthy  Perfons  ^u^^^T^j^ 
(that  have  indeed  faid  all  that  can  be  faid)  but  more  Conji.  Prin- 
efpecially  in  that  famous  Dilpute  not  long  fince  before  "^'  ^°^®  ^^f 
His  Sacred  Majefty  in  Council,  where  all  the  moHu Ca/e M* 
elaborate  and  ingenious  Reafons  that  could  be  drawn  ^arjhalfea. 
by  the  Skill  of  a  learned  Civilian,  were  there  afferted 
in  vindicating  the  Admiralties  Jurifdiftion,  by  the 
Judge  of  the  fame.  Sir  Leoline  JenkinSy  in  anlwer  of 
whom  was  produced  that  Great  Good  Man  the  Lord 
Chief  Juflice  Haky  who  as  well  by  Law  pofitive  as 
other  his  great  Reafons,  foon  put  a  Period  to  that 
Queftion,  which  during  his  Days  flept,  and  it  may  mo- 
deftly  be  prefumed  will  hardly  (if  ever)  be  awaked. 

He  that  hath  never  fo  little  to  do  with  the  Com- 
pafs,  though  he  fits  ftill  in  his  Place,  does  as  much 
or  more  than  all  the  other  neceflary  Noife  in  the  Ship ; 
the  Comparifon  is  quit  of  Arrogance,  for  it  holdeth 
in  the  Defign,  it  is  not  meant  of  the  Performance. 

And  though  I  well  know,  that  thofe  that  Ipend 
their  Time  in  brewing  of  Books,  are  by  Seneca  com- 
pared to  petty  Painters,  that  bufy  themfelves  in  copy- 
ing out  Originals,  having  this  half  Verfe  of  Horace 
often  thrown  in  their  Teeth, 

0  ifnitafores  ferviim  pecus  ! 

Yet  I  have  this  Hope  left,  that  my  Faults  and  Flaws, 
like  thofe  found  in  the  Cuts  of  Diamonds,  may  at 
this  time  the  eafier  efcape  under  the  Excellency  of 
their  Subjed:,  or  at  leaft  under  that  of  your  Charity. 

Charles  Molloy. 

■— — i*— ■■  .I  «M     I 



O  F    T  H  E 


Chap.  Page 

i./"^  F  Dominion  cr  Property  in  general^  and  of  the 

\^     Caufes  changing  the  fame  by  War  i 

2.  Of  "Letters  of  Mart  and  Reprisal  25 

3.  Of  Frivateers  or  Capers  47 

4.  Of  Piracy  ^^ 

5.  The  Right  of  the  Flag^  as  to  the  acknowledging  the 

Dominion  of  the  Britifli  Seas  y^ 

6.  Of  the  Right  of  Pr effing  or  Seizing  of  Ships  or 

Mariners  for  Service  publick  .97 

7.  0/  Dominion  eftablifbed  by  Treaties  of  Alliance  in 

general  114 

8.  Of  Alliances  unequal^  and  of  ProteElion  134 

9.  Of  Treaties  of  Truce,  Neutrality,  and  Peace   141 
I  o.  Of  the  Immunities  and  Privileges  of  AmbaffadorSy^ 

and  other  publick  Miniflers  of  State  146 

11.  Of  the  Right  of  delivering  Perjonsfiedfor  Pro^ 

teBion  163 

12.  Of  Contribution  paid  by  Places  Neuter  to  both 

Armies  in  War  173 

JS-  Of  the  Naval  Military  Part  18 1 

14.  Of  Salutations  by  Ships  of  War^  and  Mercha?it- 

Men  210 


rhe     CONTENTS. 

The  Contents  of  the  Second  Book. 

Chap.  Pagi 

-t./^^i^   the   various  Rights  and  Obligations  of 


Owners  and  Partners  of  Ships ^  in  Cafes  pri- 
vate 219 

2.  M after s  of  Ships,  their  ABions  conftdered  in  refe- 

rence to  Cafes  private  and  publick  229 

3.  Of  Mariners y  their  fever al  Offices  and  Immunities 

and  of  Barretry  committed  by  them  242 

4.  Of  Freight y  Charter-parties  and  Demorage     254 
V  Of  Wreck  268 

6.  Of  Avaridges  and  Contributions  278 

7.  Of  Policies  of  AJfurance  287 

8.  Of  Prifage  and  Butler  age  300 

9.  Of  Pilots,  Wharfage,  Primage,  Avaridge,  Load- 

manage  304 

10.  Of  Bills  of  Exchange  307 

1 1.  Of  Monies  advanced  by  way  of  Bottomry,  or  Foenus 

Nauticum  353 

12.  Of  Impofitions  called  Great  Ciftoms,  Petty  Cu- 
fioms,  and  Subfidies  363 

13.  Of  Impofitions  fubfequent,  conditional,  temporary, 
&c.  385 

14.  OfScavage,  Package,  Porterage,  Water-Baillage, 

Ports,   Members,  Creeks,  the  Port  of  London, 
•    a77d  Places  lawful  to  lade  and  unlade  in         391 

15.  Of  Provifons  and  Allowance  made  notwithfiand- 
ing  the  feveral  Claufes  in  the  A5ts  for  the  Cu- 

ftoms  402 

16.  Of  the  Right  ofPaffage,  of  impofing  on  the  Per- 
fons  and  Goods  of  Strangers  for  Paffage  through 
the  Seas  412 


rbe     CONTENTS. 

The  Contents  of  the  Third  BooL 

Chap.  Page 

1.  /^^  F  Freedom,  Bondage^    Slavery ^  Exile y  and 
\^        jibjuration  417 

2.  Of  Aliens^  as  in  relation  to  their  EJlates  real  and 

per  final  428 

3»  Of  Naturalization  and  Denization  438 

4.  Of  Aliens y  andTryals  per  Mcdietatem,  where  aU 

lowedy  a7id  where  not  448 

5.  Of  Planters  454 

6.  Of  "Jews  462 

7.  Of  Merchants  47^ 

8.  0/  Factors  493 

9.  0/  f*^  L^7e*^  0/  Natm-e  and  Nations  498 



CHAP.     I, 

jQDf  dominion  o?  ^loptttv  in  general,  ana 
of  tf)t  Caufejs  cj^angtng  t^e  fame  bv  CiHar. 

I.  Of  Dominion  in  the  Primitive 
State  of  Man. 

II.  l^hat  fuch  a  Dominion  univerfal 
might  hanje  continued. 

III.  Of  the  Cau/es  changing  the  fame. 

IV.  Of  thingf  excepted  tacitly  by  the 
Laiv  of  Dominion. 

V.  Of  Property^  inhere  the  fame  may 
be  changed  againfl  the  Onjoner  by 

VI.  Of  PublickWar,  foiemn  or lefs 

VII.  Solemn  War,  by  ivhom  to  be 

VIII.  Jn  equitable  Interpretation  of 
the  fame  in  Cafes  of  Necefjtiy. 

IX.  Of  War  by  the  Laws  of  Eng- 

X.  That  yuflice  is  the  <very  Bafts 
that  muji  fupport  a  War. 

XI.  Jujiice  rwhaty  andivhether  War 
jujiifiable  by  the  Laivs  of  Nature 

to  prefer^e  the  fame. 

XI I .  O/  War,  and  of  the  Ships  and 
•  Goods   of  an  Enerny^    ivkere  the 

Property  is  changed  by  the  Lwws 
of  Nature  and  of  Nations. 

XIII.  Where  the  Property  of  Goods 
taken  from  an  Enemy  is  qualified 
by  the  Laiv  Civil. 

XIV.  OfReJiitution,  nvhere  the  fame 
by  Lanu  may  be  of  Goods  or  Mer- 
(handife  acquired  in  War. 

XV.  Of  Rejiitution  ex  gratia,  made 
by  the  Sovereign  of  him  nuhofe  Ships 
icre  lofi\  and  regained  aftemuards 
in  Battle  by  Ships  of  War ;  and  of 
the  like  by  Primes  or  Republicks  in 

XVI.  Of  the  affaulting  an  Enemy  in 
the  Ports  or  Havens  of  Nationi 
Neuter,  vohether  lavoful  by  th^ 
Lavjs  of  Nations. 

XVII.  Of  Proteaion  given  to  Shipi 
cf  Enemies  being  in  Port  before^ 
and  found  there  after  War  de* 

XVIII.  Of  the  Goods jf  Friends 
found  in  the  Ships  of  Enemies y  and 

of  thofe  of  Enemies  found  in  the 
Ships  of  Frievdsy  and  vohere  Pro- 
perty of  the  fame  is  altered. 

XIX.  Whether  againfi  Nature  h 
defray  the  Goods  and  Ships  of  our 

XX.  Of  Interpellation  and  Denun- 
ciation,  vohether  neceffary  by  ths 
LavJS  of  Nature  and  Nations. 

XXI.  Of  Denunciation  by  the  Cufom 
of  the  Romans  and  other  Nations^ 
and  vohether  requifite  at  this  Day» 

XXII.  War  vjhere  proclaimed  4- 
gainfi  any  one,  includes  his  Sub- 
jefts  and  Adherents  ^    but  not  as 

confidered  by  themfelves, 
XX II  I.  The  true  Reafon  voherefors 
Indiaion  voas  introduced, 

XXIV.  Of  the  Goods  of  Friends  thai 
fupply  an  Enemy ,  vohether  fubjeB 
to  be  made  Prize  by  the  Lavjs  of 

XXV.  Havo  dealt  voithai after  fei- 
zure,  by  the  Pradice  of  antient 
and  modern  Ages. 

XXVI.  Whether  lavoful for  a  Chi" 
flian  to  afjifl  an  Infidel  againfl  a 
Chrifiian  by  the  Lavoscf  Nations ^ 
and  by  our  Religion, 

I.TW  T  O  fooner  had  the  Eternal  Power  created  Man,  but 

i^\|    he  bellowed  on  him  a  Right  over  the  things  of  this 

inferior  Nature  •,  nor  was  his  Goodnefs  leffened  upon  the 

A  Reparation 

2  fiDf  ^Up$  of  mat.     B  o  o  K  I. 

yujih,  lih.     Reparation  of  the  World  after  the  Flood  {all  things  he- 
43-  ing  then  undivided  and  common  to  all,  as  if  all  had  one  Patri- 

mony) fince  every  Man  might  then  take  to  his  ufe  what  he 
A  Theatre  is  pleafed,  and  make  confumption  of  what  he  thought  good 
common,  yet  j^  his  own  Eyes  *,  which  ufe  of  the  univerfal  Right  was 
feffed^b^^  an^  ^^^^  inftead  of  Property  :  For  what  any  one  had  fo  taken 
one,  may  he  ^^^^^^^  could  not  without  Injury  take  away  from  him. 
rightly  called  II.  Nor  was  it  impolTible  for  that  State  to  have  conti- 
his  own.  nued,  if  Men  through  great  Simplicity  or  mutual  Charity 
had  lived  together  •,  and  this  is  inftanced  in  thofe  Ameri- 
Juflin,  lih.  2.  cans,  who  through  many  Ages  have  lived  in  that  Commu- 
Uf  ^eScy this  lo- n'liy  and  Cuftom,  and  the  other  of  Charity,  which  the  EjJ'enes 
guitar  "Trogus.^^^^^^  pradifed,    and  then  the  Chriftians  who  were  firil 

rritnum   inter       t^        r  i  i  i-ta  r  iii 

Homines  znali^'^J^^^M^^^'y  ^"^  ^^  ^"^^  -"-^^y  "^t  E  kw  that  lead  an  a- 

fiefcia  ^  «^-fcetick  Life  :  The  Simplicity  of  our  firft  Parents  was  de- 

huc  ajiutia  in-  monftratcd  by  their  Naked nefs,  there  being  in  them  rather 

txperta  fimph' ^^  fg;/^r^»r^  of  Vice,  than  a  knowledge  of  Virtue,  their  only 

Bufinefs  being  the  Worfhip  of  God,  living  eafily  on  thofe 

things,  which  the  Earth  of  her  own  accord  brought  forth 

without  labour. 

ill.  Yet  in  this  fimple  and  innocent  way  of  Life,  all  Men 
perfifted  not,  but  fome  applyed  their  Minds  to  various 
Arts*,  the  moft  antient  of  which  were  Agriculture  and  Fa- 
Jiure,    appearing  in  the  firfl  Brothers,    not  without  fome 
diftribution  of  Eftates,  and  then  from  the  diverfity  of  each 
Man's  Actions  arofe  Emulation,  and  then  Slaughter  ;  and 
at  length,  when  the  Good  were  infe6led  with  the  Bad,  a 
gigantick  Kind  of  Life,  that  is,  violent ;  but  the  World  be- 
ing walhed  by  the  Flood,  inftead  of  that  fierce  Life,  fuc- 
Senua  f^atu-  ceeded  the  defire  of  Pleafure,  whereunto  JViite  was  fubfer- 
ralium.  3.  in  vicnt ;  and  thence  arofe  unlawful  Loves,  but  by  that  more  ^ 
f^''  general  Vice  Ambition,  Concord  was  chiefly  broken,  after 

which  Men  parted  afunder,  and  fcverally  poflels'd  feveral 
parts  of  the  Earth ;    yet  afterwards,    there  remained  a- 
mongft  Neighbours  a  communion  not  of  Cattle,  but  of 
Paftures  ;  becaufe  in  the  fmall  number  of  Men,  fb  great 
was  the  Latitude  of  Land,  that  without  any  incommodity 
t^einfignart    it  might  fuffice  to  the  ufes  of  many,  until  the  number  of 
quidemaut^    Men,  fo  of  Cattle  increafing.   Lands  every  where  began 
cTmtos  Fas^^  to  be  divided  j  not  among  Nations  as  before,  but  among 
trat.  Families ;   an  inftance  of  which  we  have  hourly  before 

cur  Eyes  in  thofe  vaft  immenfities  dbat  ^re  daily  appro- 

"'  1:.  :■:""  '       '    '     F^iating 

Chap.  I.        £>{  ^^ip$  of  m^V,  % 

priating  and  planting  in  America :  From  hence  we  learn 
what  was  the  caufe  for  which  Men  departed  from  the  pri- 
mitive communion  of  things,  firft  of  moveables^  and  then 
of  immoveables  alfo  ;  to  wit,  becaufe  when  not  content  to 
feed  upon  that  which  grew  of  itfelf,  and  the  Earth  fmgly 
brought  forth,  to  dwell  in  Caves^  to  go  naked^  or  clad  with  < 
rinds  of  Trees ^  or  skins  of  Beafis ;  they  had  chofen  a  more  • 

exquifite  kind  of  Life,    there  was  need  of  Induftry,   and 
ufing  of  Art  in  thofe  matters,    which  they  fhould  give 
themfelves  up  to ;  fo  likevvife  from  hence  we  learn,  that 
Men  not  content  to  live  in  that  innocent  ftate  of  commu- ^o^/«.  lih.  3. 
nity,  how  things  went  into  Property,  not  only  by  tht^^P-  7* 
a6l  of  the  Mind  (for  they  could  not  know  the  thoughts  of 
one  another,  what  every  one  would  have  to  be  his  own,  Gro/;aj//^;i/^- 
that  they  might  abftain  from  it,    and  many  might  defire''^*  ^^^^^'<'i  <^P* 
the  fame  thing)  but  by  a  certain  Coveftant ;  either  e:^prefs  ^5' 
as  by  divifion,    or  tacit  as  by  occupation  :  For  fo  foon  as 
Communion  did  not  pleafe  them,   and  divifion  was  not 
made,  it  ought  to  be  fuppofed  an  agreement  amongft  all^ 
that  every  one  fhould  have  proper  to  himfelf  what  he  fei- 
zed  on,  ^  for  every  one  might  prefer  himfelf  before  another^  in*  CU  o$c.  f .' 
getting  thofe  things  ufeful  for  the  accommodating  of  human '^^^^^^^!^^  J-}' 
Life^  Nature  not  being  repugnant  to  the  fame,  ^* .  ff^^^lcon- 

ditio  efty  ut  quicquid  in  ufum  hominis  cejjli^    proprium  Jit  hahtntU,  pt-ofeSlo  quicquid  jur6 
pojjidetury  injuria  aufertur.      Macrohius  Saturn.   /.  3.  c.  12, 

IV.  And  though  Property  may  feem  to  haVe  fwal-^- 
low'd  up  all  that  right  which  arofe  from  the  common 
ftate  of  things,  yet  that  is  not  fo  ♦,    for  in  the  Law  of  Bo- 
minion^  extream  neceffities  feem  excepted.     Hence  it  is  that 
in  Navigation,    if  at  any  time  Viduals  fail,  what  every 
one  hath,  ought  to  be  brought  forth  for  the  common  ufe  t 
And  fo  in  a  Fire,  I  may  pull  down  or  blow  up  my  Neigh- 
bour's Houfe  to  fave  mine  5  dellroy  the  Suburbs,  to  raife 
Lines  or  Forts  to  preferve  the  City  thereby  ;    dig  in  any  Z^^.  2.  §,fum 
Man^s  Ground  for  Salt  Peter,  cut  in  pieces  the  Tadding^^^^^^^^^^^-^^ 
or  Nets  upon  which  my  Ship  is  driven,  if  it  cannot  ^^  ^',„^ljlagmi 
difintangled  by  other  means:  All  which  are  not  introdu-^  ^od  ait, 
ced  neither  by  the  Civil  Law,  nor  the  Municipal  Laws  ofD.incend.  Leg. 
Countries,  but  are  expounded  by  them,  with  their  V^^'^'J^j^f^jy^ 
per  diverfities.  ad  I.  Aqmia7n\ 

12,  U.  3.  tiidiftrtf.  170.    li.  <^.  7.  5,    Rcmger  5e  Fogafia,  Plowden  fol.  i.  to 

'     '  A  a  V.  Nor 

4  ifiDf  ^\)ip?i  of  C[lar*  Book  I. 

BalJ.  lib.  3.  V.  Nor  is  Property  lb  far  inflated  in  Man,  but  the  fame 
de  rerum  di-  j^^y  ^g^in  be  divcftcd  by  fuch  means  as  ftandx  with  the 
^emTtrhave  ^'^^  ^  'Nature  and  Nations  %  and  firft  by  War,  the  Cau- 
beenofopi-  fes  of  which  are  alTigned  to  be  three.  Defence^  Recovery ^ 
nion,  that     and  Revenge. 

by  the  Laws 

of  Nations  one  ipay  take  Arms  to  abate  the  growing  Power  of  his  Neighbours. 
S^  ut  'vim  fati  pojje  ad  'vir/i  infer endam  "J us  tribuat^  ah  omtti  aquitatis  ratione  ah- 
horret:  Bat  that  a  poflibility  of  fuffering  Force,  Ihould  give  a  right  of  offering  of 
Force,  this  is  far  from  all  Equity,  fays  the  excellent  Grotius^  lib.  2.  cap.  1.  fed.  27. 
Fa/egh's  Hiflory  of  tlie  World,  p.  678.  G;o/.  de  jure  belli  ^  pads,  I.  3.  c.  6.  SeSl. 
II,  12,  13,  14. 

But  then  fuch  War  muft  be  juft,  and  he  that  undertakes 
it  mud  be  a  Sovereign  :  The  juft:  caufes  to  make  a  War  are 
our  Princess  or  Countryh  defence,  and  that  of  our  Allies, 
the  Satisfadiion  of  our  Injuries,  or  theirs  ;  our  juft  Preten- 
fions  to  an  Eftate  or  Right  •,  Divines  have  added  another, 
not  only  the  Defence  of  Religion,  but  its  Advancement 
and  Propagation,  by  the  way  of  Arms,    and  fome  the 
extirpation  and  rooting  up  a  contrary.      Certainly  War 
is  too  rough  a  Hand,  too  bad  a  Means,  to  plant  Piety  \ 
Sicut  non  Martyr  em  pcena^  Jic  nee  for  tern  pugna^  fed  caiifa  ; 
Raleghy  680.  As  it  is  not  the  ptinijhment  that  makes  the  Martyr^  fo  it  is  not 
fighting  that  declares  a  valiant  Man,    but  fighting  in  a  juft 
caufe  \  in  which  whofo  fliall  refolvcdiy  end  his  Life  vali- 
antly,   in  refped  of  the  caufe,  that  is,  in  the  Defence  of 
his  Prince,  Religion,  or  Country,  ought  to  he  numbered  a- 
mong  the  Martyrs  of  God, 

VI.  Publick  War  is  either  Solemn  by  the  Laws  of  Na- 
tions, or  elfe  lefs  Solemn.     What  we  here  call  Solemn  is 
commonly  called  Juft,    in  the  fame  fenfe  as  a  juft  Tefta- 
Ita  inter  ctjes  j^g^j-  J3  oppofed  to  CodicilSy  not  that  it  i^  not  lawful  for 
^matlimonia^  ^^^  that  pleafes  to  make  Codicils,  but  becaufe  a  Solemn 
nan  jujluy  «o«Teftament  hath  by  the  Civil  Law  fome  peculiar  effeds; 
jujii  liberi.     and  this  difference  is  worth   Obfervation,    feeing  many 
-^^"^••^^"'•^'^mifunderftanding  the  Word  Juft  conceive  all  Wars  to  be 
^ '  ^^'      condemn'd  as  unjuft  and  unlawful,  whereunto  this  Ap- 
For  the  more  peHation  of  Tuft  is  not  agreeable. 

clear  under-    ■»••'*-' 

(landing  of  VI.    mat 

the  foregoing  Seflion  we  think  it  may  be  6f  ufe  to   abftraft  Lord  Chief  Juftice 

H«/<?'s  fenfe  of  this  matter  as  follows, -Our  Wars  with  foreign  Countries  have 

been  either  fpecial  or  general:  i.  Special,  ufually  called  Marque  or  Reprifal,  and 
thefe  either  particular,  /.  e.  granted  to  fome  particular  Perfohs  on  particular  Oc- 
cafions  to  right  ihemfdvcs,  vid,  5/«/.  2.  H,  5,  7.  Or,  2.  general  Marque  or  Reprifal, 


w         A  >.. 

c  H  A  p,  I.     )©f  ^^ip^  of  mtiv,  s 

which  though  it  hath  the  efFedl  of  a  War,  yet  differs  in  thefe  two  Inftances  j 
1 .  regularly  no  Perfon  may  by  aggreffion  take  the  Ship  or  Goods  of  the  adverfe 
Party,  without  a  Commiflion  ;  2.  ihe  two  Nations  are  not  therefore  in  a  perfeft 
State  of  Hoftility  ;  though  they  mutually  take  from  each  other  as  Enemies  j  and 
many  times  thefe  general  Reprifals  grow  into  a  formed  War.  Such  was  the  Dutcb 
War   1664.     Ha/e's  Hiji.  PI.  Cr.   162. 

A  general  War  is  either  folemnly  denounced,  or  not  folemnly  denounced  ;  the 
former,  when  War  is  folemnly  declared  or  proclaimed  by  our  King  againft  another 
State.  Such  was  the  Dutch  War  1671,  (and  the  prefent  War  with  Spain.)  Am 
unfolemn  War  is  when  two  Nations  flip  into  a  War  without  any  folemnity  ;  and 
ordinarily  happeneth  among  us.  Again,  if  a  foreign  Prince  invades  our  Coafts,  or 
fets  upon  the  King's  Navy  at  Sea,  hereupon  a  real,  though  not  a  folemn.  War 
may,  and  hath  formerly  arifen.  Such  was  the  Spanijh  Invafion  in  1588.  So  that 
a  State  of  War  may  be  between  two  Kingdoms  without  any  Proclamation  or  ln<r 
diflion  thereof,  or  other  matter  of  Record  to  prove  it.     Idem.  164. 

VII.  That  War,  according  to  the  Law  of  Nations,  may 
be  Solemn,  two  things  are  requifite:  Firft,  Th^t  it  be  wa- 
ged on  both  fides  by  his  Authority  who  hath  the  higheft 
,Power  in  the  Commonwealth.     Secondly,    That  certain 
Rights  be  ufed  (of  which  we  ihall  fpeak  in  due  place)  one 
of  thefe  without  the  other  (becaufe  they  are  both  required) 
doth  not  fuffice.     Publick  War  lefs  Solemn   may  v/ant 
thofe  Rites,    and  be  waged  againft  private  Perfons,  and 
have  for  the  Author  any  Magiftrate.     And  according  to 
the  opinion  of  moft  Civilians,  if  the  matter  be  confidered 
'  without  Civil   Laws,    it  feemeth  that  every  Magiftrate 
hath  right  to  wage  War,  as  for  the  defence  of  the  People 
committed  to  his  Charge,    fo  for  the  Exercife  of  Jurif- 
didion,  if  he  be  oppofed  by  Force:  But  becaufe  by  War 
the  whole  Commonwealth  is  endangered  ;    therefore  by 
the  Laws  of  all  Nations  that  War  be  not  undertaken  with- 
out the  Authority  of  him  whofe  Power  in  the  Common- 
wealth is  the  higheft,  there  is  extant  fach  a  Law  of  Plato's,  Uh  deLeg.!.$, 
and  in  the  Roman  Law  it  is  called  Treafon  in  him  who^^-^^^^s-J^h 
without  the  Command  of  the  Prince,   hath  waged  War,  ^^''-^* 
or  lifted  Soldiers,  or  raifed  an  Army  -,  in  the  Cornelian         ,    .. 
Law  brought  in  by  L.  Cornelius  Sylla  it  was,  without  ths 
Command  of  the  People  ;    in  Jujiinian^s  Code   is  extant  a 
Gonftitution  of  Valentinian  and  Valens^  None  have  leave 
to  take  any  Arms  without  our  knozvledge  and  direvlion.     And  foi  g.  i^  j^o^, 
my  Lork  Coke  in  his  Third  Inftitutes  obferves.  That  by  the  doit  de  droit 
Common  Law  of  this  Realm  it  was  High-Treafon  *  to  levy>f'^f  ^  ^^^ 

-^•3  ^  ^^  Realm -vers 

Enemies,  ^c.  F.  N.  B.  w'i,.  a,  *  See  i  Hale's  HiJi.  PI.  Cr.  p.  130,  &c.  and 

to  the  end  of  Chap.  1 4.  for  much  good  matter  on  this  Point.    It  mua  be  a  levying  War 

6  ^f  ^f^ip$  Ot  Zmv.         Book  I. 

aga'tnj}  the  King,  by  the  Statute  ;  and  it  mull  be  in  his  Realm,  Therefore  private 
Quarrels,  tho*  carried  on  more  guerrino  among  the  great  Men,  did  not  amount  to  the 
levying  of  War. 

The  Realm  q^  England  comprehends  the  narrow  Seas.     Idem,  page  154. 

War  without  Authority  from  the  King,  for  to  him  it  be- 
longeth  only.     And  the  reafon  why  it  fhould  be  fo  fub- 
je6led  is,    becaufe  that  natural  Order  for  preferving  of 
peace  among  Men  requires  that  an  Authority  and  Council 
in  undertaking  of  War  Ihould  remain  in  Princes. 

VIII.  But  as  all  Laws  muft  be  interpreted  by  Equity, 
fo  muft  this  Law  ;  and  therefore  there  is  no  Queftion  but 
that  'tis  lawful  for  one  having  Jurifdidion,  by  force  of 
thofe  which  we  call  a  peaceable  Guard  or  Power,  viz,  Con- 
ftable,  Serjeants,  Watchmen,  ^c,  to  conftrain  a  few  dif- 
pbedient  Perfons  as  oft  as  there's  no  need  of  greater  Power 
to  that  purpofe,  and  no  imminent  danger  to  the  Common- 
wealth. Again,  if  it  be  fo  prefent  a  danger,  that  time  will 
not  admit  of  Confultation  with  him  who  hath  Supreme 
Power,  here  alfo  neceflity  affordeth  another  Exception  ; 
and  therefore  in  Garrifons,  if  the  Townfmen  ihould  endea- 
vour to  fall  over  to  an  Enemy,  they  may  be  dealt  withal 
as  Enemies  by  the  Governor  of  the  Garrifon,  and  by 
that  Right  L.  Pinarius  Governor  of  Enna^  a  Garrifon  in 
Sicily^  having  information  that  the  Townfmen  were  falling 
off  to  the  Carthaginians y  making  flaughter  of  them  kept 
the  Town  :  And  the  reafon  why  fuch  extraordinary  Force 
is  called  War,  is,  for  that  the  fame  is  commenced  by  the 
right  of  the  Magiftrate,  in  which  cafe  the  War  is  fuppos'd 
to  be  made  by  the  highell  Power,  becaufe  every  one  is 
judged  Author  of  that  which  he  giveth  another  Commiffion 
to  do ;  befides  the  univerfal  reafon  which  warrants  the  a6V, 
requires  that  all  Dangers,  Rebellions,  and  Infurredlions 
be  withftood  and  checkt  in  the  very  bud,  and  tho*  this 

Oar  Author  \^  called  War,  yet  this  ftridly  is  not  properly  War,  the* 
derftood\ere  ^^^  Parties  who  fupprefs  or  punifh  are  impune. 

of  War  within  the  Realm.  But  War  folemn  or  unfclemn  with  Enemies  out  of  the 
Kealui,  are  bothecpially  War.     See  i.  Hale's  Hijl.  163.  ihewed  above,  Seei.  6. 

IX.  But  War  properly  by  the  Laws  of  this  Realm  or 
Solemn.^  is,  when  the  Courts  of  Juftice  are  fhut  up,  and 
the  Judges  and  Minifters  of  the  fame  cannot  proted  Men 

'  from  violence,  nor  diftribute  Juftice  :  So  when  by  Inva/ion^ 

'        '  Infurreilion'j^ 

c  H  A  p.  I-      M  ^i)ip$  of  22lar*  7 

Infurre^ion^  Rehellion^  or  the  like,  the  current  of  Juftice  is" 

ftopt  and  fhut  up,  Etftlent  leges  inter  arma^  then  it  is  faid  h  ^^-  3.  tiu 

to  be  time  of  War,    and  the  Trial  of  this  is  by  Records  ^^''''^ /''"^^ 

and  Judges  of  the  Courts  of  Juftice,  and  not  by  a  Jury.  ]l^,'i!'l^^l^[^^ 

So  likewife  War  by  the  Laws  of  England  is  when  the  Earl  of  hau* 

King's  Standard  and  Hoft  enter  the  Realm  of  another  ^^A''. 

Prince  or  State,  and  hath  been  there  by  the  fpace  of  Forty 

Days,   for  till  then  the  War  is  not  properly  faid  to  h^tr'm.  yEd.^: 

begun.  fol'  29. 

X.   Wars,  though  undertaken  by  publick  Authority,  Gro/.  d'^yW 
muft  have  the  Effedls  of  Law,  that  is,  there  muft  be  a  jufl  helU  et  pa.  tiL 
caufe  for  the  undertaking  the  fame  *,  fo  that  Alexander^  for^*  ^*  ^*  §*  '• 
that  without  caufe  he  warred  upon  the  Perfmns  and  other 
Nations,  is  by  the  Scythians  in  Curtius  and  by  Seneca  too  Seneca  de  hem- 
defervedly  called  a  Robber.     For  take  away  Juftice,  and/c  i.  c,  13, 
what  are  Kingdoms  'but  great  Robberies  ?  Therefore  the 
juft  caufe  of  taking  Arms  muft  be  the  Iniquity,  or,  as  we 
underftand  it,  the  Injury  of  the  adverfe  Party,  according 
to  the  Words  ufed  in  the  antient  Denunciation  of  the 
Roman  Heralds,  *'  I  call  you  to  witnefs^  that  People  is  unjuft^  *  Ego  *vv  u- 
and  doth  not  perform  what  is  Right,     Nov/  that  is  unjuft/'"'»   Populum 
which  hath  a  neceffary  repugnance  to  the  rational   ^'^'^  g!f-^ ^f^^'^^ 
focial  nature.     Now  amongft  the  firft  principles  of  ^^' pgrjhhere. 
ture  there  is  nothing  neceflarily  repugnant  to  War,  there 
is  much  in  favour  of  it ;  for  the  end  of  War,  the  confer- 
vation  of  Life  and  Members,  and  the  keeping  or  acquir-     ' 
ing  of  things  ufeful  unto  Life  is  moft  agreeable  unto  thofe 
Principles  :  And  if  need  be,  to  ufe  Force  to  that  purpofe 
is  not  difagreeable,  fince  every  thing  hath  by  the  Gift  of 
Nature  ftrength,  to  the  end  it  may  be  able  to  defend  and 
help  itfelf,  and  therefore  he  is  by  Nature  fitted  for  Peace 
and  War  \  though  coming  into  the  V/orld  unarmed^  yet  he 
hath  a  Hand  fit  to  provide  and  handle  Arms.     Moreover 
right  Reafon  and  the  Nature  of  Society  inhibits  not  all 
Force,  but  what  is  repugnant  to  Society,   that  is,  which 
depriveth  another  of  his  Right ;  for  the  end  of  Society  is, 
that  by  mutual  Aid  every  one  may  enjoy  his  own.     And 
this  were  fo,   although  the  Dominion  and  Propriety  of 
Pofleflions  had  not  been  introduced  -,  for  Life,  Members, 
Liberty  would  yet  be  proper  to  every  one,  and  therefore 
could  not  without  Injury  be  invaded  by  another,  and  to 
ipakc  i)fc  of  what  is  common,    and  to  fpend  as  much  as 

A  4  may 

?  M  ^ffip&  of  mat.       B  o  o  K  I, 

may  fuffice  Nature,  would  be  the  right  of  the  occupant, 
which  right  none  without  Injury  could  take  away  :  And 
that  is  made  evident,  fince  by  Law  and  Ufe,  Dominion  i^ 
5r«/^VQ^f.3.eflablifhed,  and  that  appears  by  the  Orator,  JJt  Ji  unum- 
quodque  memhriim  fenfum  fuum  haberet^  ui  pojfe  putaret  ft ' 
valerefi  proximi  membri  valetudinem  ad  fe  traduxijfet^  debi- 
litari  &f  interrire  totum  corpus  necejje  eft :  And  applying 
that,  fays.  So  if  every  one  of  us  fnatch  unto  himfelf  the  com- 
.   modities  of  other  Men,  and  draw  away  from  every  one  what 
he  can  to  advantage  himfelf  ,  human  Society  cannot  ftand.  Na- 
ture gives  leave  to  evexy  Man,   in  the  acquifuion  of  things 
ufefuly  to  fupply  himfelf  before  another  :  But  by  the  Spoils  of 
another  to  increafe  his  own  Store,  that  Nature  doth  not  permit. 
It  is  not  then  againft  Society  to  provide  for  one's  felf,  fo 
that  another's  right  be  nqt  diminifhed  ;  nor  is  that  violence 
iunjuft  which  doth  not  violate  the  Right  of  another.     Of 
the  two  kinds,  Contention  by  debate  and  by  force,    the 
one  agreeing  to  Men,    the  other  more  becoming  Beafts, 
we  muft  fly  unto  the  latter  when  the  former  would  not  ferve. 
te-  ?  •  fi^r   '^^^  incomparable  Ulplan  fays,  Caffius  writes  that  it  is  by 
<vim  'vL  p.  de  Nature  lawful  to  repel  Force  by  Force,  and  Arms  by  Arms, 
^'^^'^^'  f\Vi^x!ci\%  is  further  proved  out  of  Sacred  Hiflory ;    for 
when  Abraham  having  armed  his  Servants  and  Friends, 
purfued  the  four  Kings  that  fpoiled  Sodom,  and  returned 
with  Victory  and  Spoil  of  the  Enemy,  God  by  his  Prieft 
pen.  xiy.  i8,  Melchifedeck  approved  his  Adion,  Bkffed  be  the  mcft  High. 
God,  faid  Melchifedeck,  who  hath  delivered  thine  Enemies 
into  thine  Hand.     Abraham,  as  appears  by  the  Story,  had 
taken  Arms  without  any  fpecial  CommilTion  from  God  \ 
therefore  the  Law  of  Nature  was  his  Warrant,  whofe  Wif- 
<3om  was  no  lefs  eminent  than  his  Sandlity  •,    nay,  God 
himfelf  hath  prefcribed  to  hi3  People  general  and  perpetual 
Laws  of  waging  War,  thereby  fliewing  that  Wars  may  be 
Juft,  even  without  his  fpecial  Mandate  -,  for  he  doth  plain- 
ly diftinguifh  the  Caufe  of  tjie  feven   Nations  (in   which 
God  gave  a  fpecial  Mandate  for  the  deftroying  of  them, 
which  is  properly  called  the  Wars  of  God,  and  npt  of  hu- 
rnan  Counfel)  from  the  Caufe  of  other  People,  and  pre- 
icribing  nothing  about  the  juft  Caufes  of  entring  into  War, 
thereby  fhews  them  to  be  manifeft  enough  by  the  Light 
pf  Nature,    as  the  caufe  of  the  defending  of  the  Fron- 
tier3  in  the  Wars  of  Jephtha  againft  the  Ammonites^   and 

•  -  thQ 

Ch  AP,  I.      is>t  ^i)iv&  of  Mar.  ^ 

the  caufe  of  Embafladors  violated  in  the  Wars  of  David 
againft  the  fame  People. 

XI L  By  the  Law  of  Nature,  in  War  thofe  things  are 
acquired  to  us,  which  are  either  equal  to  that,  which 
being  due  unto  us,  we  cannot  otherwife  obtain,  or  elfe 
is  fuch  a  mark  as  does  infer  Damage  to  the  guilty  Party 
by  a  fit  meafure  of  Punifhment ;  and  by  the  Laws  of  Na- 
tions, not  only  he  that  wages  War  on  a  juft  Caufe,  but 
every  one  in  folemn  War,  and  without  end  and  meafure, 
is  Mafler  of  all  he  taketh  from  the  Enemy  in  that  Senfe, 
that  by  all  Nations,  both  himfelf  and  they  that  have 
Title  from  him,  are  to  be  maintained  in  the  PofTeiTion  of 

I   them ;    which  as  to  external  Effed  we  may  call  Domi- 
nion ;  Cyrus y  in  Xenophon^  It  is  an  everlafting  Law  among  Xenoph.  c.  de 
Men,  that  the  Enemies  City  being  taken^  their  Goods  and  Inftit.  Cyri. 
Money  Jhould  be  the  Conquerors  ;  for  the  Law  in  that  mat- 
ter is  a  common  Agreement,    whereby  the  things  tdk^nAriJi.i, Polite 
in  War  become  the  Takers.    From  the  Enemy  are  judged 
to  be  taken  away  thofe  things  alfo  which  are  taken  away 
from  the  Subjects  of  the  Enemy,  and  Goods  fo  taken  can- 
not by  the  Law  of  Nations  be  properly  faid  taken,    but  Hujufmodi  res 
when  the  fame  are  out  of  all  probable  hopes  of  recovery ^  that^''"  ^^^  ^^p^^ 
is,    as  Pomponius  obferves,    brought  within  the  bounds  or  ?"''^.  7^^^^ 
guards  of  the  Enemy  *,  For^  fays  he,  fuch  is  a  Perfon  taken  in  ^d! plf.  Pompo- 
War^  whom  the  Enemies  have  taken  out  of  our ^  and  brought  ni us  &Leg.  in 
within  their  Guards^  for  till  then  he  remains  a  Citizen.  And  BelloParag.Si 
as  the  Law  of  Nations  is  the  fame  reafon  of  a  Man,  {^q^i^ f^r'vumin 
.  likewife  of  a  thing;  and  therefore  Goods  and  Merchan-'?fJ'  ^      ' 
dize  are  properly  faid  to  be  the  Captor's,   when  they  are 
carried  Infra  Pr^ejidia  of  that  Prince  or  State,  by  whofe 
Subjeds  the  fame  were  taken,  or  into  the  Fleets  or  into  a  \ .  Halis  Hiji, 
Haven  ^   or  fome  other  place  where  the  Navy  of  the  Enemy  PI- ^^'P-^^S' 
rides  :  For  then  it  is  that  the  recovery  feems  to  be  paft 
all  hope.     And  therefore  the  common  Law  of  this  Realm 
calls  fuch  a  taking  a  Legalis  Captio  in  Jure  Belli^  and  in  2  ^-  Z-fil-  3' 
7  i^.  2.  an  A6lion  of  Trefpafs  was  brought  for  a  Ship,  ^  ^'^'  J*"^^' 
and  certain  Merchandize    taken    away,    the  Defendant  py  -/  ^"^ 
pleaded  that  he  did  take  them  in  \t  |)ailt  9^Zlt  OU  IC0 

laptmangi  qtieut  font  Cneniiegi  leEop:  And  it  was 

adjudged  that  the  fame  Plea  was  good.  And,  in  the  Year 
16 10.  a  Merchant  had  a  Ship  and  Merchandize  taken  by 
a  Spaniard^  being  an  Enemy  -,  z  Month  after  a  Merchant 
"  '   '     ^  " /  Man, 

1  a  jflOf  ^l^tpiS  Of  max.         B  o  o  K.  I. 

M.  8.  Jac.    Man,  with  a  6'i?//>  called  The  little  Richard^  retakes  her  from 
k'^'ii^^'Td  ^^^  ^P^^^^r^ '   It  was  adjudged,  that  fuch  a  poflfemon  of • 
a!"  I  A.  a,  24.^^^  Enemy,  divefted  the  Owner  of  his  Interred,  and  the 
U.S.  16. 17.  retaking  afterwards  inBattle,    gained  the  Captors  a  Pro- 
lucas,  79.     perty. 

XIIL  'Tis  true,  the  Civilians  do  hold,  That  it  is  not 
every  PoflefTion  that  qualifies  fuch  a  Caption,  and  makes 
f.JF/i»/fVZf//?.  it  become  the  Captor's;  but  a  firm  poiTeflion  (that  is) 
Pl.Cr. p.  16$,  when  the  Prize  doth  perno5iare  with  the  Enemy,  or  remain 
in  his  pofieflion  by  the  fpace  of  24  Hours  ;  but  as  this  is  a 
•  Confulatii  new  *  Law,  fo  it  is  conceived  to  be  againft  the  antient'  1 
JWijr/V,  r.  283.  jujjgn^gf^fs  of  the  Civil  Law,  as  well  as  the  modern  Prac- 
%ailicat  20  ^^^  of  common  Law  ;  For  the  Party  in  the  antient  Pre- 
iit.  i^/art.  Cedents  doth  not  mention  by  his  Plea,  that  the  Prize  did 
^4.  pernoSlare  with  the  Enemy,    but  generally,  that  the  fame 

7^'  2-  Tref-^^  gained  by  Battle  of  the  Enemy. 
P/  ^cl^^^^^  XIV.  This  right  of  changing  of  Dominion  or  Property 
by  force  of  Arms,  is  fo  odious,  that  in  the  taking  of  Goods, 
if  by  any  poflibility  the  right  Owners  may  have  reftitu- 
tion,  the  fame  hath  been  done.  And  although  a  larger 
time  than  24  Hours  happens  between  the  capture  and  re- 
capture, and  fo  it  may  perno^are  with  the  Captor,  yet  re- 
ilitution  may  be  made ;  and  therefore  if  one  Enemy  takes 
the  Ship  and  Merchandize  of  another  Enemy,  and  brings 
her  into  the  Ports  or  Havens  of  a  Neuter  Nat  ion  .^  the 
Owners  may  feize  her,  and  the  Admiral  of  that  Neuter  Na- 
tion may  in  fome  cafes  reftore  the  Ship  and  Goods  to  their 
Owners,  and  the  Perfons  captive  to  their  former  liberty  ; 
the  reafon  is,  for  that  the  fame  ought  to  have  been  brought 
(a)  Res  qua  in-  infra  Prxftdia  (a)  of  that  Prince  or  State  by  whofe  Subjed 

^Zduai'^mn   fl^e  was  taken. 

^mfunt.M^an'  ^  Dunklrksr  having  feized  a  Frenchman's  Veflel,  fuper 
quam  ahhop-cltum  Mare^  fold  the  fame  with  her  lading  at  Weymouth  \ 
%us  occupat^,  whither  it  had  been  driven  before  Ihe  was  brought  infra 
Pominum  non  p^^jj^^  j^^fjj^  j^^g.  Hifpani^  :  The  Frenchman  coming  into 
Isenilum  jure.  P^^^j  thtxt  claims  the  benefit  of  the  Laws  of  Nations,  the 
Crotiusiiejure'KAn^  of  England  being  then  in  amity  with  both  their 
J?^////3fP^m,  Princes,  and  that  reftitution  be  made;  in  which  cafe 
\h)\T  V^"  ^^  ^^^  refolved  by  all  the  Judges,  (b)  That  if  there  be  a 
j^gp  j'^j'^^  '  Caption  by  Letters  of  Marque^  or  Piracy,  and  the  VefTel 
and  Goods  are  not  brought  infra  Pr^/idia  of  that  Prince 
or  State,  by  whofe  Subjeft  the  fame  was  taken,  the  fame 

-.  -    will 

Chap.  I.        £)f  %Up&  Of  JEOar.  ii 

will  not  diveft  the  Property  out  of  the  Owner  j  with  this 
agrees  the  Law  Civil,  and  reftitution  may  be  made. 
For  this  is  not  an  abfolute  property  immediately  veiled 
in  the  Captor  upon  the  taking  ;  but  a  conditional  pro- 
perty to  anfwer  the  original  Debt  or  Damage,  which 
cannot  be  done  without  a  judicial  Adjudication,  the  op- 
portunity of  which  he  hath  loft  by  bringing  the  'Prize  Per  leg.  iihtr- 
\  into  the  Country  of  another  Prince  :  For,  as  to  private  '^^»  ^  ^f  h* 
War,  their  Countries  are  as  an  Afylum.  '^^^' 

XV.  But  if  the  Ships  of  War  of  Nations  in  enmity  meet 
at  Sea,  and  there  be  a  caption,  if  there  be  that  which  is 
called  a  firm  popffion^  the  Neuter  Nation  cannot  re-deliver 
or  make  reftitution  of  the  thing  fo  acquired :  And  ib  it 
was  adjudged,  where  Samuel  Pellagii  with  a  Ship  of  War  iRo,Rip.iy^> 
of  the  Emperor  of  Morocco ,   took  a  Spanijh  Ship,    and3^«^^'?^- «3. 
brought  the  fame  into  England^    that  he  could  no  ways  ^^U^^^^^^c 
be  queftioned  for  the  fame  criminaliter^  or  reftitution  to  Reprifal  a- 
be  made  civiliter  ;    for  that  the  King  of  Spain  and  the  gainft  a  NatJ- 
Morocco  Emperor  were  Enemies,  and  the  King  of  England  ^"^^^^^^^^^ 
in  Amity  with  both,  and  that  fuch  a  caption  is  not  called  ^g^^^g^^  ^[^ 
Spoliation  fed  legally  captio,  in  which  there  can  be  no  refti-  states ;  nor 
tution  made,    upon  neither  of  the  Statutes  of  31  H,  6.  can  they  be 
cap.  4.  or  27  Ed.  3.  cap.  13.  for  he  that  will  fue  to  have^^^  ^P  ^  ^^ 
reftitution  in  England  for  Goods  taken  at  Sea,  muft  prove,  2^E^l^'foIi^ 
That  the  Sovereign  of  the  Party  was  in  amity  with  the  King  CoramReae  ^ 
of  England.     Secondly,  T^hat  he  that  took  the  Goods^   his  Condlio  fuo  in 
Prince  was  at  the  time  of  the  taking  in  amity  with  the  Sove-  CameraSfe//a- 
reign  of  him  whofe  Goods  were  taken.  For  if  he  which  took^^   fol^z'j 
them,  was  in  enmity  with  the  Sovereign  of  him  whofe 
Goods  were  taken,  then  the  fame  will  not  amount  unto 
a  depredation  or  robbery,   but  a  lawful  taking,   as  every 
Enemy  might  take  of  another. 

A  Spanifh  Merchant,  before  the  King  and  his  Council, 
in  Camera  Scaccarii,  brought  a  Bill  againft  divers  Englifh-y  E.  4,  14. 
men,  wherein  fetting  forth  quod  depr^datus  &  fpoliatus  fu^  ^3  -2^-  4-  9- 
f/,  upon  the  Sea,  juxta  partes  Britannia  per  quendarn  Virum  ^^    '^  \,l* 
Bellicofum  de  Britannia^    de  quadam  Navi^   and  of  diversy^/.  2. 
Merchandizes  therein,    which  were  brought  into  Eng- 
land^ and  came  into  the  Hands  of  divers  Englifhmen^  na- 
Tning  them,    and  fo  prayed  procefs  againft  them,   who 
came  in,   and  pleaded,   that  in  regard  this  depredation 
3(yas  done  by  a  Stranger,    and  not  by  the  Subjeds  of  the 
'     '  ^  King 


12  ^(  ^f)ip0  Ot  mat.         Book  I. 

27 F.  3.^.  13.  King  of  England^    they  ought  not  to  anfwer.     It  was 

3 '  ^^  ^- J^- 4  there  refolved,    ^od  quifquis  extraneu>y  who  brings  his 

\ro  Rep  17c  ^^^^  upon  this  Statute  to  have  reftitution,  debet  pr  oh  are 

quod  tempore  capiionis  fuit  de  amicitia  Domini  Regis  %  and 

alfo,  quod  ipfe  qui  eum  ceperit,  ^  fpoliavit^  fuit  etiam  fub 

ohedientia  Regis ^  vel  de  amicitia  Domini  Regis ^  five  Principis 

qu^rentis^  tempore  fpoliationis^  ^  non  Inijnicus  Domini  Re^ 

gis^  five  Principis  qu^rentis  :  ^iaftfuerit  inimicus,  i3  fic 

ceperit  bona^  tunc  non  fuit  fpoliatio^  nee  depredatio^  fed  !e- 

galis  captiOy  prout   quilihet  inimicus  capit  fuper  unum  ^ 

alter  urn. 

Uujufmodi  res     But  if  the  King  of  England  is  in  enmity  with  the  States 

fiontam  capta,  of  Holland^  and  one  of  their  Ships  of  War  takes  a  Mer- 

^-"^^lintuJ^   chant-Man  of  the  King  of  £;z^te^'s,    and  afterwards  a- 

^fer  D.LeZ'      ^^^^^^  ^^^P  ^f  ^^^  ^^  England  meets  the  Dutchman  and 

P<7w/.o«/aj,  ^  his  Prize,  and  in  aperto  pr^elio^   regains  the  Prize,  there 

ferleg.inBel-Y^^ix.\xx\Qn  is  commonly  made,    the  Owners  paying  the 

lo  Par.  ft  quis  g^i^^^g  ,  Sq  ^hetc  the  Prlzc  is  recovered  by  a  Friend  in 

tcriJUJH  1^   fir.  ^  .  .  '     .  , 

de  Cap. l^  toil,  ^"^^^^y-i  ^^  comes  into  his  Ports  ^  reftitution  is  likewife 
made  ;  but  when  fuch  Goods  become  a  lawful  and  juft 
Ter  Leg.  pojl-  prize  to  the  Captor,  then  fliould  the  Admiral  have  a  tenth 
limimi,  Par.  ^^^^  followine  the  reliffious  example  of  Abraham,  after 
Capt.  & popL  his  Vidory  over  the  five  Ktngs. 

Boyce  &"  Cohy  verf.  Claxton^  Hill.  26,  ^  27  Car.  2.  in  B.  R.  Reftitution  made  for- 
merly by  a  French- Man,  who  had  regained  an  Englijh  Prize  out  of  the  Hands  of  a 
Dutch  Man  of  War. 

XVI.  He  that  is  an  Enemy,  may  every  where  be  af- 
faulted,  according  to  the  Laws  of  Nations.  Enemies 
may  therefoj-e  be  attacked  or  llain  on  our  Ground,  on 
our  Enemies,  or  on  the  Sea  ;  but  to  aflfault,  kill,  or  fpoll 
him  in  a  Haven  or  peaceable  Port.,  is  not  lawful  •,  but 
that  proceeds  not  from  their  Perfons,  but  from  his  right 
that  hath  Empire  there,  for  Civil  Societies  have  provided 
that  no  force  be  ufed  in  their  Countries  againft  Men, 
but  that  of  Law,  and  where  that  is  open  the  right  of 
Sir  Walter  hurting  ceafeth.  The  Carthaginian  Fleet  was  at  Anchor, 
Ralegh,  /.  5.  in  Syphax  Port,  who  at  that  time  was  at  Peace  with  the 
f'Z'  §•  17-  Romans  and  Carthaginians  *,  Scipio  unawares  fell  into  the 
fame  Haven,  the  Carthaginian  Fleet  being  the  ftronger, 
might  eafily  have  deftroyed  the  Romans  j  but  yet  they 
durft  not  fight  them.  The  like  did  the  Venetian^  who 
hindered  the  Greeks  from  aflaultinor  the  Turkifh  Fleets  who 


Chap.  I.        jflDf  %Up&  Of  mSiV.  13 

rid  at  Anchor  in  a  Haven,  then  under  the  Government 
of  that  Republick  ;  fo  when  the  Venetian  and  Turkijh  Fleet 
met  at  Tunis^  though  that  very  Port  acknowledges  the 
Ottoman  Emperor  -,  yet  in  regard  they  are  in  the  nature 
oi  a  Free  Port  to  themfelves,  and  thofe  that  come  there, 
they  would  provide  for  the  peace  of  the  fame,  and  in- 
terdicted any  hoftile  attempt  to  be  made  there. 

"  The  Corfairs   having  been  in  the  Gulph^    put  into  the 
Port  of  Vallona^  which  is  fubjedl  to  the  Turk  ;  whereup- 
on   Capello^'  Proveditor-General  for   the    Venetian^    and 
Captain  of  the  Gulph,  having  notice  of  the  fame,  made  Hiftory  ofthe 
into  the  Port ;    and  though  the  Ottoman  Port   had  by  Republick  of 
Treaty  permitted   the  Venetian  to  purfue  the  Pirates  in  ^Tg^^^^^"? 
all  Places,  and  forbad  their  Commanders  to  protedl  or  .,7/ 
ihew  them  any  Favour,  yet  the  Caftle  interdidted,  and 
forbad  the  Venetian  General  with  Cannon  to  attack  them  ; 
for  it  was  neverthelefs  intended  by  the  Treaty  that  the 
Peace  of  Ports  muft  be  prefer ved. 

And  the  fame  Republick  having  War  with  thofe  of 
Cenoa^  met,  at  'Tyre^  Reinerius  Zenus  Duke  of  Venice  with 
the  united  Power  of  the  Venetians  and  Pifans^  counting 
no  fewer  Number  than   74  VejGTels  well  provided,    and  Fuller's  Holy 
would  have  engaged  in  the  very  Haven,    but  were  there  ^*^»  ^-  4-  ^< 
interdicted  by    the  Governor*,    but  yet  with   this  Pro-^^' 
vifo,  that  if  by  confent  they  would  go  out  of  the  Pro- 
teclion  of  the   Port,    and  at  open  Sea  decide  the  caufe, 
they  had  then  freedom :    And   accordingly   they    failed 
forth  and  engaged.     The  like  not  long  fince  happened 
-between  Cornelius  de  Wit^  Commander  of  a  Ship  of  War 
of  the  States  General^  and  Captain  Harman^  Commander 
of  one  of  His  Majefty's  Frigates  at  Cales^  a  Challenge  be- 
ing made  in  that  Port  by  the   firfl,  and  as  brifkly  ac- 
cepted by  the  latter,    but  both  were  interdicted  the  exe- 
cution of  the  fame  in  the  Port,  but  out  of  the  protection 
of  the  fame  they  might  decide  the  Queftion  -,  the  which  y«».  Anno 
they  did  to  the  no  fmall  Fame  of  the  laft  ;  for  in  that  1672. 
difpute,  of  380  Men  then  aboard  the  States  Man  of  War 
there  were  fcarce  100  whole  Men  in  her,  and  Harman 
having  entered  and  taken  her,    brought  her  at  his  Stera 
in  Triumph  to  the  Port  again. 

But  they  of  Hamburgh  were  not  fo  kind  to  the  Eng- 
lijhy  when  the  Dutch  Fleet  fell  into  their  Road,  where  rid 


14  ^f  @^t  pg  Of  mat.     B  o  o  K  I. 

jfrtno  166^,  at  the  fame  time  fome  English  Merchant-Men,  whom  they 
j^fcumBa- ^^^^^^^^y  *^oo^'  t)urnt,  and  fpoiled  ;  for  which  Aclion, 
t^y^^  ^^  "°^  preferving  the  Peace  of  their  Port,  they  were 
by  t\it  Law  of  Nations  adjudged  to  anfwer  the  damage, 
and  I  think  have  paid  moft  or  all  of  it  fmce.  But  Ene- 
This  is  Jus  mies  in  their  own  Ports  may  be  alTaulted,  burnt,  or  de- 
helli,  ^  in   ftroyed  by  the  Laws  of  Arms. 


maxime  confer vanda  funt  Jura  Belli.  Reg.  fol.  129.    Arrejl  fa^  fuper  honis  Mercator, 


XVII.  If  the  Ships  of  any  Nation  happen  to  arrive  in 
any  of  the  King  of  England  ^s  Ports,  and  afterwards,  and 
before  their  departure,  a  War  breaks  out,  they  may  be 
Grot,  de  Jure  fecured,  privileged  without  harm  of  Body  or  Goods  j 
belli  iff  pads  but  uudcr  this  limitation,  till  it  be  known  to  the  King, 
A^.  3.  f.  II.  j^Q^  jj^g  Prince  or  Republick  of  thofe,  whofe  Subjedls 
Some  of  old  ^^^  Parties  are,  have  ufed  and  treated  thofe  of  our  Nation  in 
have  held  that //&<?/V  Ports.  But  if  any  fhould  be  fo  bold  as  to  vifit  our 
Clericus,  Agri-  Ports  after  a  War  is  begun,  they  are  to  be  dealt  with  as 

liuuolatlcom-     XVIII.  By  the  Laws  of  Nations  generally  all  things 
mutet,  oretque2iTt  the  Captor's  which  he  takes  from  his  Enemy,   or 
face  /r«a»/ar  which  his   Enemies  gained    from  another  by   Force  of 
Co.  2.  Inflit.  Arms  ;  fo  likewife  all  thofe  Goods  that  he  fiiall  find  in 
^  ^  *         his  Enemies  cuftody  :  But  then  it  muft  be  apparently  ma- 
nifeft,   and '  evidently  proved,    that    is  really  the  Ene- 
mies ;  for  if  an  Englifh-Man  fhould  have  Goods  in  the 
cuflody  of  a  .Dutch  Fa5ior  at  Cales^    and  a  War  fhould 
break  out  between  that  Prince  and  that  Reptihlick^   yet 
are  not  the  Goods  of  the  Englifh-Man  fubjed:  to  the  fei* 
zure  of  the  Spaniard^  it  being  apparent,    that  the  Owner 
ConfuL  Marit.  IS  not  a  Subjedt  of  their  Enemies :    So  likewife  if  the 
*•  273.         Goods  of  Friends  are  found  in  the  Ships  of  Enemies^  this 
does  not  ipfo  fa5io  fubjedt  the  fame  to  be  prize  by  the 
Laws  of  Nations ;    though  it  be  a  violent  prefumption, 
and  mayjuftly  bear  a  legal  examination,  till  which  there 
Hops  Jit  ille,  may  be  a  fecuring  of  the  prize,  till  adjudication  fhall  pafs. 
frJid\JTu^  So  on  the  other  had,  if  the  Ships  of  Friends  fhall  be 
>«/;  Let^Wm  ^^^^g^^^^  ^"^  ^^  ^^^^  ^^^  Goods  of  Enemies,  this  may 
be  our  Ene-    fubjedt  them  to  be  prize,  efpecially  if  the  Goods  fhall  be 
my,  and  they  laden  aboard  ly  the  confent  or  privity  of  the  Mafler  or  Skip^ 
in^hirCuard*-^^'' '  ^^^"8^  '"  France  they  have  fubjeded  and  involved 
Liv.  lib.  Z7^.^^^  innocent  with  the  nocent,   and  made  both  of  them 

^alihipajfm,  "       '  '        2  friz^^. 

c  H  A  p.  I.      iS>t  %f^ip$  of  mat.  15 

prize.  In  the  late  Flemijh  Wars  with  England,  the  OJlen^ 
ders  became  obfequioufly  ferviceable  with  their  Ships  to 
the  Traffick  and  Commerce  of  both  Nations.  Memora- 
ble was  the  Action,  when  the  War  was  between  the  two 
Repiiblicks,  Venice  and  Genoa^  the  Grecian  Ships  be- 
ing then  employed,  (as  thofe  of  Oy?^«/^)  were  fearched,  Gr^^er.  A^,  9. 
and  the  Enemies  pulled  out,  but  no  other  matter  done : 
However  it  is  mod  certain,  let  the  Commijfion  or  Protect-- 
on  of  fuch  Ships  be  what  they  will,  if  Men  will  venture 
to  trade  under  fuch  a  Cloak,  it  behoves  them,  that  the 
Skipper  and  his  Crew  be  entirely  ignorant  j  for  it  is  his 
adtion  that  will  go  far  in  the  freeing,  or  making  abfo- 
lute  the  Prize,  and  Goods  fo  made  prize,  the  property  is 
immediately  gone  and  changed,  be  the  Owner  who  he 
•will,  he  never  can  claim  the  fame ;  for  the  Laws  of 
Nations  made  the  Enemies  firft  Mafiers  ly  External  Domi^ 
nion^  and  then  by  Conqueft  gave  the  property  to  the  Captor  : 
Following  that  Judgment  of  the  Romans^  Whatfoever  they 
got  of  their  Enemies  by  Valour ^  they  would  tranfmit  to  their  ^^^^^^^o^^^' 
Pofterity  by  Right.  •  r/«fT>JX 

A  J        '      nig 

mas  cred'imui  pojfejjiones  quas  Belli  Lege  captas  hahemus ;  neque  njero  induct  fojjimus  ut 
fiulta  facilitate  deleamus  'virtutis  monument Uy  Ji  eas  illis  reddamui^  quibus  femel  perie- 
runt :  Imo  vero  tales  pojfejjiones ,  mn  tantum  cum  his  qui  nunc  'vivunt  ci'vibus  nojlris  com- 
municandas  ;  fed  i5f  pojleris  relinquendas  cenfemus :  tantum  abeji  ut  farta  relinquendo  in 
nos  ipfos  ea  conJiituamuSy  qu^  in  Hojies  conjiitui  folent :  Titus  Largus  his  opinion  in 
the  Senate  of  Reftitution  :  We  Romans  believe  thofe  pofleffions  to  be  moil  honou- 
rable and  juft,  which  we  have  taken  by  the  Law  of  War ;  nor  can  we  be  indu- 
ced by  a  foolifh  Facility  to  part  with  the  Monuments  of  our  Valour,  and  reftore 
them  to  thofe  that  were  not  able  to  keep  them  ;  nor  do  we  judge  fuch  pofTeffions 
to  be  communicated  only  to  our  Country-Men  now  living,  but  to  be  left  to  our 
Pofterlty.  So  far  are  we  from  relinquifliing  what  we  have  got,  and  dialing  with 
ourfelves,  as  if  we  were  our  own  Enemies.  De  Veij  idem  in  Romulo  narrat  Plu" 

XIX.  'Tis  not  againft  Nature  to  fpoil  the  Goods  oitlij}.  5. 
him,  whom  it  is  lawful  to  killy  and  by  the  Laws  of  ^^'?7/.\J^-^^'^' 
tions  it  is  permitted  that  the  Goods  of  Enemies  may  be/^  ^^   /T^? 
as  well  fpoiled  as  taken;    d,nd  Polybiu^  obferves,    That§.  i. 

all  things  of  the  Enemies  may  be  fpoiled,    their  Ships, 
Goods,  Forts,  ^c, 

XX,  And  though  it  may  happen  fometimes  that  a 
War  may  break  out,  and  there  may  be  no  publick  de- 
nouncing or  proclaiming  the  fame ;  that  if  a  Friend  or 
Neuter  fliould  affift  an  Enemy  with  Contraband  Coods^  that 

~~.  is. 

i6  £)f  %i)ip&  of  mat.        Book  I. 

Oiuen,  45.     IS,  Arms,  (fjc,  whether  upon  fuch  a  caption  the  Goods 
^u^  ^n^r  °^  "^^y  ^^  niade  prize  ;  the  refolution  of  which  will  depend 
on  thele  Lonlitierations. 

Firft,  By  natural  Law,  where  either  force  offered^  is  re^ 
Grotiusjih.^.pelledj  or  punijhment  exa^led  of  one  that  haih  offended^  and 
€ap.^.^.  2,^.  is  denied^  there  needs  no  denunciation;  for  Princes  are. 
not  to  (land  debating  with  Words  and  Arguments,  being 
injured  beyond  Words :  For  War  undertaken  to  rejiji  vio- 
lence^ is  proclaimed  not  by  an  Herald^  but  by  Nature  :  For 
it  is  no  more  than  the  invading  of  one  for  another,  or 
taking  of  the  Goods  of  the  Debtor,  to  anfwer  the  Credi- 
tor's damage. 

Secondly,  Interpellation  is  introduced  by  the  Laws  of 
Nations,  whereby  Princes  or  Republicks  having  received 
injuries,  may  apparently  fhew  that  they  had  no  other 
way  to  recover  their  own,  or  that  which  is  due  to  them  : 
For  fuch  Interpellation  following  after  injuries  committed, 
Vid.  Maria-  conftitutcs  that  Prince  or  State  in  a  fault  that  fhall  not 

PI,  Cr.  p,  161,  162,  dsfr. 

Denunciation  Thirdly,  Admitting  that  Interpellation  hath  gone,  and 
is  either  con-  fatisfaftion  hath  been  required  for  the  damage,  and  no 
pure"^Condi- ^^^^^^^^°^y  return  hath  been  made,  whether  then  the 
tionate  where  Ships  or  Territories  of  the  Enemy  may  be  aflaulted :  And 
it  is  joyned  for  that  it  has  been  conceived  they  may,  for  denuncia- 
with  remand-  ^ jqj^  jg  ^^  j^^j.^  \y^^  ^-q  fjgnify  that  the  Parties,    againft 

and°in\he^^'  whom  the  fame  is  commenced,  are  unjufi  and  will  not  do 
name  of  m  re-  right ^  and  therefore  War  is  begun  by  the  Supreme  Power, 
petita  the  He-  Now  Princes  or  Republicks  having  done  that  which  by  the 
"n^H^^V  "^^^  of  Nature  they  were  not  obliged  to  do,  that  is,  af- 
fzw!  compre-  ^^^  ^  wrong  done,  abftained  from  War  by  Friendly  de- 
hended  not  manding  of  Satisfaftion  or  Reparation  (which  is  required 
only  vindica-  only  by  the  Laws  of  Nations)  and  publick  Juftice  being 
tion  by  right ^gj^jg^  them,  there  remains  no  other  or  further  obliga- 
butalfo\he  '  ^^^^  ^n  the  State,  the  fame  amounting  to,  and  indeed  is 
profecution     an  apparent  defiance  \  and  Proclamation  is  no  other. 

of  that  which  is  due  upon  a  civil  or  criminal  Caufe.     Severus. 

' ad  \o.       XXI.  True  it  is,    that  while  the  Romans  were  uncor- 

u€n.  explamsj.yp|.g^  jj^  ^l^^lj.  DifcipHne,  they  were  religioufly  fcrupulous 

thence  was  ^" 

flbat  in  the  Forms  to  be  renJgred,  to  bt  fatisjifd,   to  he  fteldfdt  where  to  be  yielded, 


Chap.  I.        ^t  %i^ip^  ot  V^at,  17 

as  we  have  faid  clfewhere  is  to  be  undcrftood,  unlefs  they  that  kre  called  upon  will  ra- 
ther punifh  the  guilt/  themfclves :  This  requiring  of  things  P/iny  tellifics  was  named 
Clarigation,  /;i.  8. 

in  beginning  a  War  ;  for  they  never  fent  forth  their  Ar- 
mies till  they  had  fought  for  Juftice  in  the  trads  of  Peace, 
and  after  the  publick  promulgation  of  their  intent.     Such 
alfo  was  the  integrity  of  the  Afhaans,    before  they  had 
forewarned  the  Enemy  to  a  defence.     Mdchiavel  com- 
mends the  fimplicity  of  the  Antient  Plorentines^    that  en- 
terprized  no  Hoftility  on  their  Neighbours  till  they  had 
by  ringing  a  Bell  for  the  fpace  of  a  whole  Month,  fum- 
moned  them  to  a  peaceable  fatisfa6lion  or  a  brave  refifl- 
ance  :  But  thefe  Cufloms  and  Inftitutions  are  only  of  fome 
Countries,  not  from  the  Law  of  Nations.  The  white  Rod 
among    the    Greeks^   the  Turfs    and    Bloody  Spear  a- 
mong  the  EquicoU,  renunciation  of  Friendfhip  and  So- 
ciety (if  there  had  been  any)  thirty  folemn    days  ^^^^^ »  f  i^e  fh  o\v^ 
fatisfadion  demanded,    *  are  rather  introduced  by  thatjng  of  the 
which  we  call  the  Cuftom  or  Law  of  particular  Kingdoms  Spear,  and 
and  States  •,  for  there  may  be  War  no  Queftion  intro-  ^^^h  fort  of 
duced,  without  any  folemn  Proclamation,  as  the  violation  ^^.^j^  ^.^ 
of  Ambafilidors  by  approbation  of  publick  Authority  is  not  belong  to 
an  open  denunciation  of  War,  and  upon  the  fame  Reafon  the  Law  of 
Gufiavus  Adolphus  invaded  "t"  the  Germatt  Empire,  with-  Nations, 
out   ever  declaring  War,    to  revenge  the  contumelious  ^^P.'^*'^^^  _ 
ufage  of  his  AmbafTadors  at  Lubeck.     The  form  of  de-  came  obfo- 
nunciation    of    War    is    either    conditional,    or    abfo- lete  j  nay  the 
Jute;  Conditional,  when  reflitution  or  fatisfadion  is  de- ^^^''^ -^"^'"'^'^ 
manded  at  the  fame  time  that  the  War  is  ^^"o^^ced.  ^^^Jj^^j^^^ 
A  pure  or  abfolute  denunciation,  is  that  v/hich  efpecially  and  begun, 
is  called  an  Indidlion  or  Proclamation,   which  is  either  r^r;v7,  lib. 
when  the  other  Party  hath    already    begun    the  War,  4-  ^^ /• 
or  when  he  himfelf  hath  committed  that  which  deferves"^.,  ''  *  yl*^' 
to  be  puniihed.  hee  hxamples^  Grot,  lib.  3.  r.  3,  8,  7.  SuecUa,  joL 

Zouch  de  yure  Fedalif  part.  2.  fe^.  10.  qu.  An  heUum  aliquando  cm'Jfa  indi5i'ione 
mo'Vere  liceai  ? 

XXII.  But  if  War  be  indi<?led,  or  is  begun,  againfl 
him  who  hath  the  higheft  Power  over  the  People,  it  is 
fuppofcd  to  be  proclaimed  againft  all  his,  not  only  Sub- 
jeds,    but  thofe  v/ho  will  join  themfclves  unto  him,    as 

B  being 

iS  sDf  ^i)ip^  of  mau        Book  h 

being  an  acccffion  to  his  party.     And  this  is  that  which 

the  Law  interprets,  ibe  Prijtce  being  defied^    his  adherents 

V't^ffidafo Prin- nlfo  avc  dt[fied ',  for  to  proclaim  a  War  is  to  defie,  which 

eipe,  difidati  J3  j-q  ]q^  undctftood  of  that  fame  War  whichis  waged  a- 

hllcins^ Bal-^^^'^^  ^^^  ^^  whom  it  is  indidled,  as  when  War  was  de- 
Jus  ad  Leg.  i.^ouwccdi  againfl  Antiochus^   they  were  not  pleafed  to  de-  ' 
C.  de  Sew.  n.  nounce  it  againft  the  jEtolians  apart  becaufe  they  had  o- 
7°-  penly  joined  themfelves  with  yf/^/Z^rte;  The  Heralds  an- 

Li'v.  lib.  36.  fvvered,  ^tclians  have  declared  War  of  their  own  accord 
againft  themfehes  \  but  that  War  being  ended,  if  another 
People  or  King,  for  fupply  of  Aids,    is  to  be  warred  a- 
gainft,  that  the  efFedb  of  the  Laws  of  Nations  may  fol- 
low, there  will  be  need  of  a  new  Indi6tion,  for  now  he" 
Idefn  d'uipotfji  is  not  lookt  upon  as  acceflary,  but  principal :  Wherefore 
de  hello  foch-  jj.  j^  lightly  faid,  That  by  the  Law  of  Nations,  neither 
^cZonasFri-  ^^^  ^^^^  ^^  MauUus  upon  the  Gallo-Greeks^   nor  of  Cafar 
amo  quondam  upon  ArioDiftus  was  lawful.     For  they  were  not  aflault- 
auxiliatos,  de  ed  now  as  an  acceffion  of  a  Neighbour's  War,   but  prin- 
^Od"ir  ^S*   ^T^^^y  •  To  which  purpofe,    as  by  the  Law  of  Nations 
ibiDidymus,    ^^didion,  fo  by  the  Roman  Law  a  new  Command  of  the 
Roman  People  was  neceflary.     For  what  was  faid  in  the 
•    propofal  againfl  Aniiochus  :    JVas  it  their  Will  that  War 
liruhsy  lib.  JJjould  he  entered  with  King  Antiochus  and  thofe  that  followed 
36,  42.         ^/j  Party  (which  was  obferved  alfo  in  the  Decree  againfl: 
King  Perfeus)  feems  truly  undcrftood  fo  long  as  the  War 
continued  with  King  Antiochus  or  Perfeus^  and  thofe  that 
really  immixed  themfelves  in  that  War. 

XXIII.  Now  the  true  Reafon  wherefore  Nations  re- 
quired Denunciation  to  that  War  which  was  faid  to  be 
juft  by  the  Law  of  Nations,  was  not  that  Force  fhould 
not  be  offered  privily,  or  carried  on  by  deceit,  for  that  per- 
tains more  to  the  excellency  of  their  Valour  than  to  flric^ 
Right  y  (for  fome  Nations  (as  we  have  read)  have  ap- 
pointed their  Enemy  the  time  and  place  of  Batdej  but 
that  it  might  certainly  appear  the  War  was  not  waged 
by  a  private  undertaking,  but  by  the  will  of  either  peo- 
ple or  their  Heads.  Servius  Honoratus  when  he  had  de^ 
duced  the  Original  of  the  Heralds  Law  from  Ancus  Man- 
lius,  and  further  from  the  Equicohe^  faith,  That  if  at  any 
time  Men  or  Beafts  were  by  any  Nation  taken  from  the  Peo- 
ple of  Ronie,  the  Pater  Patratus  went  with  the  Heralds 
(that  is,  Priefts)  who  have  Authority  in  fnaking  Leagues., 
2»  and 

Chap.  L        :©f  ^i)iP^  Of  ^^^^*  i? 

andftanding  lefore  the  Bounds y  with  a  loud  voice  pronounced  Tmi  certare  a- 
the  caufe  of  the  War  \  and  if  they  would  not  reftore  the  things  f^'*  .T^.  'T; 
taken^  or  deliver  up  the  Authors  of  the  Injury y  he  threw  a  ''''^'^'i^'^  '^^  *'^' 
Spear^    which  was  the  beginning  of  the  fight^  and  thence- 
forth it  was  lawful,  after  the  manner  of  War,  to  take  the 


XXIV.  War  Is  not  only  lawful  againfl  thofe  that: 
are  our  Enemies,  but  iikewlfe  againft  thofe  that  fupply 
them  J  but  yet  we  muft  diftinguilli  of  the  things  them- 
felves.  For  fome  things  there  are  chat  have  ufe  only  in 
War,  as  Arms :  Some  that  have  no  ufe  in  War,  as  thofe 
that  ferve  for  pleafure :  Some  that  have  ufe  both  in  War 
and  out  of  Vv'ar,  as  Money,  Corn,  Viduals,  Ships  and 
things  belonging  thereto. 

1.  It  is  plain,  that  by  the  firfi:  he  is  my  Enemy  that 
fupplies    my    Enemies   with  things    neceffary    for    the 


2.  But  by  the  fecond  he  is  not,  according  to  that  ofiv^^c^  and 
Seneca  :  I  will  not  help  him  to  Monies  to  pay  his  Guards  ;  ^^^'^  and^"h» 
hut  if  he  fhall  defire  Marbles  and  Robes,  fuch  things  ^^^^{  ^..^l^^,^ neuter 

.not  others,  only  they  minifier  to  his  Luxury:  Soldiers  ^/viwuh' both, 
^^  Arms  I  will  not  fupply  him    with-,    if  he  fhall  feek  /^rthelatter  per. 
Flayers  and,  Recreations  to  foften  his  fiercmefs,  I  will  gladly  ^^"«f  ^^^ 
offer  to  him  :  Ships  of  War  I  will  not  fend  bm^  but  Juch^^^^;i^^^/^^_ 
as  are  for  Pleafure  and  Ojlentation  of  Prijtces  fporting  in  {d  of  Pleafure 
the  Sea.     I  will  deny  to  give  to  one  that  purpofes  the  de-  2X  Portfmcuth^ 
Ilrudion  of  another's  Country  thofe  things  that  are  effen-  ^Jjjf^^'J^' 
^  tial,  for  it  is  a  bounty  not  to  be  allov/ed  of.  Francs,  and 

3.  But  in  the  third,  which  is  a  doubtful  ufe,   there  the  svas  no  breach 
ftate  of  the  War  is  to  be  confidered  :    For  if  I  cannot  of  the  Neu- 
defend   myfelf  unlefs   I  intercept  the  things    fent,    ne- ^^'^|;^>'»  ^'^^^ 
ceflity  v/ill  then  give  right,    but  with  the  Burden   of    ' 
Reftitution  *^,    except  fome  other  caufe  accede;    but  \i*Grothiinju^^ 
the  apportation  of  thofe  things  hinders  the  execution  cf  ^'J^^'^'l^^  '^'" 
my  right,   and  he  could  know  fo  much  who  brought//'^  -^■^* 
them,  as  if  I  had  driven  the  Enemies  Fleet  into  a  Fort 

or  Haven,   or  had  flraitened  a  Town  with  a  Siege  ox  ^\i^  Englijh 
Blockade,  and  were  now  in  expedation  of  their  yielding  drive  the 
or  compounding,  there  is  no  queftion  but  he  that  ^aJl^^^f^^P^J^' 
'  in  fuch  cafe  fuccour  my  Enemy,  ought  in  Jullice  be  made  -^^^  -^^^^^^^^ 
liable  for   the  Daniage  I  havs   tulUinccl  dirough  his  2nd  xXizDans 

-         -    -  g;  2  means  :  there  praG«di' 

^o  3©f  ^t)ip$  of  mar.       B 0 0  K  L 

eathcmA-  nieans:  Like  a  Goaler  that  fliall  wilfully  fufFer  my  Pri- 
fcac^urind  ^^"^^  toefcape;  or  one  that  hath  refcued  my  Debtor 
the  Laws  of  j^^^V  tletaincd  by  me  for  my  damage,  whereby  I  am  in- 
Nations,  for  jured,  and  according  to  -the  meafure  of  my  lofs  his 
which  die  en.  Goods  alfo  may  be  feized  and   brought  into  fuch  a  (late, 

wastc^unted  ^^  ^^^  ^"'^  ^  "^^^  ^^^^^^  ^  P^  fatisfa6lion.     But  if  he 
juil  on  the      ^^^^  ^^t  yet  done  any  damage,    but  hath  been  willing 
Iving  of         to  do  it,  there  will   be  a  right  by  retention  or  flaying 
s^'t'^'-w'/"  ^^  ^^^^  Ship  and  Goods  to  compel  him   to  give  caution 
j^^r^;^!/ 7'^'^' ^^^  ^^^^  ^"^^^^  '  but  if  my  Enemies  injuflice  towards   me 
§.  12.  '    "  ^'be  moil  evident,  and  a  Nation  that  ought  to  be   Neuter 
confirm  him  in  that  mofl  unjufl  War,  in  that  cafe    it 
will  not  only  Civilly   be  liable,    but  Criminally  as  one 
that  refcues  a  Pirate  manifeftly  guilty  from  the  Judge  at 
the  very  Bar ;  ^  and  therefore  it  will  be  lawful  to  deter- 
mine againfl  him  by  fuch  meafures  as  are  neceffary  and 
meet  for  his  Offence :  Wherefore  within  thofe  rules,    he 
may  be   fpoiled  of  Ship  and  Lading ;  and  that  is  the 
true   reafon  why  Indiflion  or  publick  Proclamation  by 
internal  right  ought  to  be  denounced,  that  fo  other  Na- 
tions may  fee  they  have  a  juft  caufe  who  commenced  the 
War,  and  that  they  ought  not  to  be  impeded  in  the  ac- 
quiring due  fatisfaclion. 

And  though  Neuters  are  not  compellable,    by  the  ri- 
gour of  War,  to  afford  Affillance  to  either  Party  without 
«  the  Will  of  the  other,    yet  fuch  may  the   emergency 

of  the  cafe  be,  that  if  enforced,  they  may  lawfully  de- 
,clare,  though  to  the  damage  of  the  weaker.  Such  was 
the  cafe,  when  the  Venetians  had  fo  far  prevailed  a- 
gainfl  the  Turks  in  Cajidia,  that  Canea  which  they  then 
beficged  by  Sea  and  Land,  was  brought  to  that  extre- 
mity that  in  all  human  probability  it  mufl  then  have 
been  fpeedily  furrcndred,  the  Englijh  Ships  being  then 
at  Smyrna,  and  prefs'd  by  the  Turk  to  afTifl  the  Grand 
Signicr  in  the  relief  of  that  City.  If  the  Perfons  whom 
the  Eu^Jjh  had  thus  aOided,  had  been  Chriflians,  there 
is  no  quefllon  this  Auxiliary  Aid  had  been  well  j  but  to 
aOlft  a.n  Enemy  of  Chrillianity  againfl  Chriflians  them- 
fch^es  hath  feemed  doubtful  :  But  furely  there  feems 
little  reafon  for  fuch  an  Ambiguity  ;  for  if  it  be  lav/- 
i-ul  to   make  League  wilIi   thofe   that  are   Aliens  from 


Chap.  I.        0(  ^^tp^f  Of  Um.  2  r 

the  true  Religion  by  the  Law  of    Nature,    then  there 
can  be  no  doubt  but  they  may  be  aided.     Nov/  by  the 
Law  of  Nature  they  may  be   entered  into  by  Chriflians 
with  fuch,  for  that  Law  is  fo  common  to  all  Men,    that 
it  admitteth  not  any  Difference  of  Religion :    Nor  was 
the  fame  univerfally  forbidden  by  the  Hebrew  Law,  as 
appears  by  Ahrahamh  aiding  the  wicked  Sodomites  with  Laus  eorum  in 
his  Arms  •,    and  that  which  was  very  remarkable,  that  ^'^^'■^»'''- 
the  Afmoneans^  being  exceedingly  fkilful    in  the    Law, 
and'  great  Obfervers  of  the  Hebrew   Rites,     yet  made^^V.  Carokm 
Leagues  with  the   Lacedeemonians  and  Romans   by    the  ^^''j''.^;  ''"^'^• 
confent  of  the  Priefts  and  People,  yea  and  publickly  of-  ^'  ^■'^^  *  ^^^' 
fered  Sacrifice  for  their  fafety  :    Nor  were  they  forbid- 
den by  the  Evangelical  Law,   according  to  that  of  TVr-  Lih,  7.  c  j, 
tullian  who  obferves.    That  fo  long  as  Ifrael  was  only 
his   People,     God    did  judly  command  mercy  towards 
their  Brethren    alone »,    but  after  that,     he   gave    unto 
Chrift  the   Nations  for  his  inheritance,    and  the  ends  of 
the  Earth  for  his  poffejfwn^    and  that   began  to  be  paid 
which  was  promifcd  in  Hcfea^    'They  that  were  not   my 
People  fhall  be  my  People,    and  the  Nations  that  had  not 
obtained  mercy  f}j all  obtain  mercy  \    From  that  time  Chrift 
hath  extended  unto  all  the  Law  of  fraternal  benignity, 
excluding    none  from  our  Compaflion,    no   more    than  T/Wf  the  Cafa 
from    his   Vocation:    From    whence    it   follows,    that  at  large  irnl^Q 
the  a6lion  of  thofe   Captains  being  then  in  the   power  ^^  "^f '^^^ 
of  the  Turli,  was  lawful  in  the  afliSing  them  againft  the       ^'^^^^ 

XXV.  And  although  the  Goods  of  Friends,  according  7«//^«W*, 
to  the  circumdance  of  the  cafe,    m.ay  be   preferved  by 
adjudication,    and  reftorcd  to  their  owner  -,    yet  all  man- 
ner of  Goods  have  not  that  priviledge :  For  though  the 
Freedom  cf  Trade  preferves  the  Goods  of  Friends,  againil 
the  rigor  of  War^  yet  it  does  not  thofe  Goods  that  J'upply  Vidt  Treaty 
the  Enemy  for  War,    as  Money,    Visuals,    Ships,  Arms,  1  Dec  at  Un^ 
and  other  things  belonging  thereto  :  for  to  '  fupply  an  Ene-  ^^^  ^^J.^'w  a 
my  that  invades  our  right,    or  feeks  the  defttudion  of^^^j^^'^  ^3  ^j^^^^^ 
our  Countries,    is  a  liberality  not  to  be  allowed  of,  and  by  Goods 
it  certainly  ftands  with  neceflity,    that//  I  cannot  fafe  ly  Contra.b4r)d 
defend  myfelf  or  endamage  my  Enemy  without  intercepting^^  prohibited 
the  things  fent^  it  may  jvftly  be  done :  But  wh^n  fu^h  goods    ^'^  ^^*  ^^ 

^^  £>f  ^i)ll)0  Of  m^X*        B o  o  k  I. 

are  felzed,   whether  they    give  the  Captor   a  right    of 
Property,  or  right  by  Retention,  to  compel  that  neuter 
Nation  to  give  Caution  for  the   future,    by  Boftages  or 
Fledges^  not  to  fupply  the  Enemy,    may  be  a  queftion. 
Tlie  Romans  who  had  brought  Viduals  to  the   Enemies 
Camhden  indi  of  Carthage-^     Were    taken    by   the   Carthaginians^    and 
Ann.^\l^(^.    again    rendered   upon   requeft  *,    the    Hollanders    in   the 
^^^'  heat  of  the  War  between  Szvcden   and  Poland,  never  fuf- 

fered  thcmfelves  to  be  interdi6led  with  either   Nation  ; 
the  fame  State  when  they  had  War  with  Spain,    inter- 
cepted the  French  Ships,  pafTing  to  or  from  Spain,  but  re- 
ftored  them. 
Plutfinh.  And  Pompey,  in  the  Hiilory  of  the  Mithridaiick  War, 

fet  a  Guard  on  the  Bofphorus,  to  obferve  if  any  Merchant 
failed  in  thither ;  whofoever  did,  and  was  taken,  was 
furely  put  to  Death;  fo  Demetrius  when  he  pofiefTed 
Attica  wdth  his  Army,  having  blockt  up  Athens^ 
hanged  up  both  the  Mafter  and  Commander  of  a  Ship, 
Ji^a;/»jinhisvvho  attempted  to  bring  in  Corn:  The  Hollanders  hav- 
f^'aff  r^'  ^"S  blockt' up  Dunkirk,  fome  Englijh  Merchans  Ships' 
did  attempt  to  enter,  but  were  denied  by  the  Hol- 

Moll  certain,    if  a  Neuter  Natiofi  had  had  notice  of 
the  War,   and  Caution  given  them  (as  is  ufual)  not  to 
fupply    the   Enemy  with  the    Counterband   Goods,    as 
they  call  them ;    if  fuch  be  the  cafe,    the  prize   is  be- 
FideTit.  Cu-come  abfolutely  the  Captor's.     So  Queen  Elizabeth  did, 
floms.  when  fhe  feized  on  the   60  Sail  of  the  Hanfmiick   Towns, 

who  were  carrying  of  Goods,    ropas  contrabanda,   to  the 
Spaniard  her  Enemy  ;    fhe  condemned  them,    and  made 
them  abfolute  prize  ;  For  as  neuters  are  not  compellable  by 
the  rigour  of  V/ar,   to  give  any  thing  againft  their  Will,  fo 
tnujl  they  not  againfi  the  Will  of  each  Party  afford  fuch  things 
0^j:£it,  45.     ^j  ;;;^j,  damagc  one  another.     For  Perfons  or  Nations  hav- 
ing had  notice  of  the  War,  which  is  done,  and  Caution 
given  fometimes  by  Proch'mation,  or  fome  other  publick 
Edi6l,  fignifying  the  right  of  their  Caufe,  and  Ihall  af- 
terwards gather  to,    and  afTift  the  Enemy,    whether  Af- 
fociates,    Neuters,   or  Subjeds,    the  fame  yields  a  rights 
t.^^eS^wnnoS^  ^^^  as  to  them,    not  only  to  the  charge  and  damage 
Under  the'    that  may  fall  thereby,  by  making  them  prize  y  but  may 
Name  of  Con-  make 

Chap,  I.        flDf  ^i)ip0  Of  mav.  25 

•make   them   obnoxious   to  punifhment :     For   it   is  7/^^ traband  may 
puty  of  thofe  that  alftain  from  War  to  do  nothing  for  the  ^^  compre- 
jtrengthning  of  him  who  maintains  a  had  Caufe^  whereby  ^J^  ^  ^^  ^^^ 
the   motions  of  him  that  wageth  ajiift  War  may  he   re-  ces  of  Ord- 

tarded ;  and  where  the  caufe  is  doubtful  they  ought  to  nance,  with 
•ihew  themfelves   equal    to   both,     permitting    paiiage,  ^^^  l"^ft" 
.baking,  drefling,  and  affording  Provifion  for  each  Army^j^^  j^  them^' 

or  Navy.  '    Fire-Balis,  * 

Matches,  Bullets,  Pikes,  Swords,  Lances,  Spear?,  Halberts,  Guns,  Mortar-Pieces, 
Petards,  Granadoes,  Mufket-rells,  Bandaliers,  Salt  petre,  Mufeets,  Mu&et  ihot,  Plel- 
mets,  Corflets,  Breaft-plates,  Coats  of  Mail,  and  the  like  kinds  of  Armature;  fo 
for  Horfes  and  other  Warlike  Inftruments.  Vide  Marine  Treaty  between  England  and 
Holland y  December  i.  1 674.  j^rt,  3.  Fide  the  Attempt  made  by  John  Burroughs  to 
trade  with  the  ^ixede  exprefly  againil  the  Interdiction  of  the  D'inifh  King  :  Sir  Waluv 
Ralegh 't  /.  5.  f.  I.  §  10. 

L.  j^ mi li US  Pr^t or  zccukd  the  ^ejans  for  vidualUngSo  likewlfe 
the  Enemy's   Navy,    promifing    them  Wine,    adding,  ^'^'P^  ^^^^^^* 
That   unlefs   they  would  do  the  like  for  the  Navy  of^^^^j.  ^^jj  ^^ 
the  Romans^     he    would    account    them    as    Enemies ;  thought  or  af- 
but  common  Experience  hath  taught  Nations  and  King- certained  ca- 
doms,    when    they   declare   Neutrality,    to   make    Pro-  ?^^^^  of^rm- 
vifion  by   way  of    League   with   both    the    Nations    at^^^y^ 
War,  that  when  it  fhould  happen  the  Armies  of  both,  BartoL  I  nuU 
or  any  draw  towards  their  Territories,  it  mio;ht  be  \2c^^lusnunc.lih.z, 
ful  for  them  to  exhibit  the  Common  Offices  of  Humanity  ,.  J.^^^'^^" 
to  both. 

'    It  happened   that    about    feven    flout  Merchant-Men 
rode  in  the   Port   at  Smyrna  •,  the  General  of  the  Vene- 
'tians^  being  jealous  of  their  joining  with  the  Turkifh  Ar- 
mado,    defired   to  know  their   Minds,    who   anfwered, 
they  would  prove  Neuter    in   the  Difpute  ;    but  after- 
wards  (though  at  firfl   the  Captains  all   refufed)    upon 
the  threatning  of  the  Grand  Signior,  to  lay  an  Embargo  .       -^ 
on  ail  the  Goods  of  the  Englifo  Nation  in  his  Dominion,  i6-i.i;i^W^. 
and  to  make  Slaves  of  their  Perfons  •,    thofe  Captains,  Cooke  of  the 
;.-,were  forced  to  join  with  the  Tiirkifo  Forces,  who  beat  church's  ftate 
^  the  ri?«f//,3;;j  from  before  Canea^  and  fo  relieved  it-,  the ^^^^^^^^;^|^ "^^"^ 
Venetian  Ambafiadbr  complained  to  the  then  Powers  in  xrad^! 
England^  but  could  have  no  Relief,  being  anfwered,  '^hat 
thofe  Ship  being  in  the  Turks  Power ^  wsre  fuhje^  to  it  \  the 

?  4  ^^ccideot 

2i  jflDf  ^Uv&  of  mat.       B  0  o  K  1. 1 

accident  being  fuch  as  made  the  Adion  lawful,  as  we 
have  afore  rem  em  bred. 

Leagues  may  be  made  with  Infidels,  by  the  Law  of 
Nature,  and  likewife  by  that  of  Religion,  which  is  fo 
equally  indulgent  to  all  Men,  that  it  will  not  admit  of 
any  Difference  upon  the  Score  of  Religion.  Vid.  Ex- 
amples and  Cautions.  Groi,  de  jure  belli  t?  pacts  lib.  2. 
Cap,  15.  §.   85  9,   1O5   II,  12. 


[   25   3 


C  H  A  p.     II. 

flDf  iLettetjs  of  ^avqut  anti  mtpti^nt 

y  I,  Of  Reprisals  generally  conjideredy 
'    and  for  nxihat  Caufes  aivardcd. 
II.  Whether  unlanxful  by  the  Lwvo 
of  Nature  J    and  of  the  Roman 
III-   Where  la<vful  by  the  La<ws  of 
Nations  at  this  Day,  and  the  rea- 
fons  lAjherefore  they  are  fo  recei- 

IV.  Of  the  Advantages  that  accrue 
univerfally  by  fuch  Reprisals. 

V.  Of  the  effential  Caufes  or 
Grounds  generally  for  the  wvjard- 
ing  Letters  of  Reprifals. 

VI.  Of  the  effential  Caufes  or 
Grounds  particularly  that  are  re- 
quifite  before  they  can  be  anuarded 
by  the  Lavjs  of  Nations  and  of 
this  Realm. 

VII.  Of  the  ordinary  and  extraor- 
dinary by  the  Laivs  (t/' England. 

VI II.  Whether  the  fame  creates  a 
Debt  in  the  Grantee ^  andnvhether 
the  Execution  may  be  fufpended. 

JX.  Whether  the  a^varding  the  fame 
amounts  to  a  Breach  of  Peace. 

X .  Of  Letters  of  extraor- 
dinary nuhere    granted,    and  of 
njchat  Force. 

XI.  T^hat  it  confijls  nvith  the  Intereji 
of  Princes,  not  only  to  prevent  thoje 
things  that  may  occajion  reprize, 
hut  likenjoife  not  to  deny  the  fame, 
if  there  be  ground  fufficient. 

^U.  ^he  Difference  of  Injujiice  of- 
fered to  Subje^s  and  to  Foreigners, 
and  vohere  the  one  is  concluded  by 
the  fame  and  not  the  other. 

XIII-  What  is  meant  by  denying 
of  Right  and  doing  of  Injujiice, 
and  vjhere  Reprizal  takes  rooting, 
and  ivhere  not. 

%W.  Of  Reprisals  fwhereaivarded, 
for  denying  of  common  Jujlice,  or 
thofe  <uohich  are  called  Letters  of 
Marque  in  Cafes  ordinary. 

XV.  Not  repairing  the  damage  after 
Letters  of  Requeji  creates  a  Na- 
tional Debt,  and  is  the  Founda- 
tion of 

XVI.  Domicil  not  Origination  fuh- 
jeSis  to  reprize. 

XVII.  Reprisal  not  grantable,  if 
the  Spoil  n.vas  occafioned  by  War. 

XVIII.  Of  Perfons  exempted  from 
Reprisal  by  the  Lan/js  of  Nations, 
Canon  and  Civil  Lavj. 

XIX.  Where  Ships  and  Goods  an 
fubjefi  to  reprize,  and  vjhere  not. 

XX.  When  Right  is  denied,  vjhether 
Life  is  engaged,  and  vohether  Per- 
fons refufng  to  yield  may  be  flain» 

XXI.  Goods  taken  by  Reprize  vohere 
the  Property  is  altered,  and  vuhere 
not  try  able  in  the  Admiralty. 

XXII.  Where  many  Ships  are  pre- 
fent,  and  one  becomes  Captor,  vjhe- 

the  Spoil  muji  he  divided,  or  re- 
main his  that  became  Mafer  of 
the  Prize. 

XX I II.  Where  the  Grantee  of  Let- 
ters of  Reprifal  may  become  a 
Pirate  notvjithjianding  fuch  Com- 

XXIV.  Where  a  Mifcaptian  creates 
not  an  Injury  in  the  Grantee,  nor 
fubje{ls  him  to  anfvjer  Damage 
to  the  Sufferers. 

XXV.  Of  the  Duties  incumbent  upon 
the  Captor,  and  vohether  the  Goods 
taken  are  fubjeSl  to  pay  Cuftoms. 

XXVI.  After  the  Debt  and  Damage 
fatisfed,  rejiitution  of  the  Rejidue 

ought  to  be  made. 

XXVII.  Contribution, vohether  it  can 
he  by  the  Laws  of  England  to  him. 
vfbofe  Goods  ars  taken  by  Reprize, 

XXVIII.  Where  CommiJJions  have 
been  avuardedfor  the  enquiring  of 
Depredations ,  under  vohich  the 
Parties  have  fometimes  obtained 

I.  Reprifals y 

26       m  Xttuts  of  a^arqttc  aitb  MtpUnl  b  o o  ic.  i. 

Grot,  de  Jure  I.  TJ  Eprifals^  known  to  us  by  the  Word  Reprifalia^  or 
^^^///  f/  Pacts     Y\^  Letters  of  Marque^  in  Law  have  other  Appellations, 
.  *  /  '    '  ^'as  Pignoration  Clarigatio,  and  Androkpfta^  &c.  in  Imitati- 
on of  that  Androlepfia^  among  the  Greeks^  to  feize  the  three 
next  Citizens  of  that  Place,  whither  the  Murderer  had  fled, 
and  was  always  given  to  him  who  required  revenge  of  the 
Offender  ;  the  word  {ReprifaJs)  is  from  the  French  repren- 
dre  and  Reprife^y  i.  e.  refumptio^  that  is,  to  re-take  or  take 
again  one  thing  for  another,  like  our  Saxon  ^ItljCtUnitt. 
Reprifals  are  Though  the  Adl  is  now  become  lawful  by  the  Law  (in- 
all  one,  both  deed  confent)  of  Nations^  yet  muft  it  have  its  Standard- 
m  the  Com-  ^^^^j.]^    f^j.  |.|^g  ^^Ltno.  Cannot  be  done  by  any  private  Authd- 

mon  and  Ci-     .        '  .,        ,  riA-^r^        ii-, 

vilLaw;  J^^-^^tyj  «^ut  only  by  the  power  or  that  Prince  or  Republick, 
prifalia  eji po- v^ho^G  Subjcd:  the  injured  Perfon  is,  nor  is  the  fame 
tejiaspignoran-  ^x^x\X.xh\<^  by  Authority,  but  where  the  Party  injured  has 

iTeCde^Zra  J^fi^^^  ^^'^^'^^  ^^^^^^  ^^  ^^^  ^^"^^  /%^//>'  delayed, 

debitoris  data 

aeditori  pro  hjurih  t^  damnis  acceptis,    vscaiular.  utriufque  jfuris.   zy  E.  3.  Slat,  2. 

cap.  ly.   2  7*/?.  zoAj  205. 

11.  By  the  L^w  cf  Nature  no  Man  is  bound  for  ano- 
ther's Act,  but  only  the  Succeflbr  of  his  Eftate,  for  that 
Goods  and  Eftate  fhould  pafs  with   their  Burthens.^  was 
^     ~    .        introduced  together  with  the  Dominion  of  Things  ;  hence 

lit  luvTex'^vi'^^  ^^  ^^^^  ^^*  ^^"  cannot  be  molefted  for  the  debt  of  his 
canii  f.  ne  ux-  Father,  *  neither  the  Wife  for  the  debt  of  the  Husband, 
cr  pro  mar.  ^nor  the  Hufbaud  for  the  debt  of  the  Wife  ;  the  fame  be- 
fiejilprcpatre.  jj^g  ag^inft  natural  equity,  that  one  fliould  be  troubled  for 

the  debt  of  another.'     So  it  is,  that  no  particular  Men  owe,  or  are  obliged 
cut  fen.  quod  for  the  debt  which  the  Community  owes,  that  is,   if  the 
^^n^^^^^''"^^^'/' Community  hz.'vt  2iny  Goods;   but  if  Money  be  lent  to  a 

^FiftnguU dehe-^^^^^^^^^^^y^*  ^^^^  Particular  is  naturally  bound,  as  they  are 
hunt  non  tan-s,  part  of  the  whole,  if  the  Stock  publick  be  wanting. 
^uamproprium\{  one  Icnds  my  Country  Money  {{dij^  Seneca.^)  I  will  not 
^'tblkam'*^ub  ^^^^  ^^yM^^^  Debtor,  yet  will  I  pay  my  Share.  And  again, 
Jid  ^piZem.  '  Being  one  of  the  People^  I  will  not  pay  as  for  myfelf,  but 
Sfne^,  lib.  6.  contribute  as  for  my  Country,  Naturally,  nay,  by  the  very 
de  Benefic.  c.  Roman  Law^  *  one  Village  was  not  bound  for  the  other, 
»^r?  ^''^//^^*  nor  one  Man's  Pofleffions  charged  for  another  s  no  not  fo 

*,  ^       -  ^^^^^ 

ichap.II.  m%tttmotWatmtanh  mtpimt      ^7 

much  as  with  the  Debts  publick ;  the  reafon  being  added,  c.  ^e  Exccut.^ 
w^hat  it  was  azainfi  reafon  for  one  to  he  charged  with  the  debt  ^  ExaaiQni^ 
\^of  another.  - 

ij     III.  And  though  by  the  Lazv  of  Nature  one  Man's 
'Goods  are  not  tied  for  the  debts  of  another,  no  nor  for 
thofe  of  the  Puhlick  *,  yet  by  the  voluntary  Law  of  Na- 
tions, the  fame  might  be  introduced  and  brought  in,  and 
the  fame  may  ftand  well  with  the  Laws  of  Nature  j  for 
that  might  be  introduced  by  Cuftom  and  tacit  Confent, 
when  even  Sureties  without  any  Caufe,  may  fubje6t  and 
make  liable  their  Goods  and  Eflates  for  the  Debts  of  a 
Stranger.     So  likewife  that  for  any  Debt,  which  any  Ci- 
vil Society^  or  the  Head  thereof  ought  to  make  good,  or 
becaufe  the  Sovereign  or  Head  hath  not  done  right  in  an- 
other's Debt,  but  hath  made  himfelf  liable  to  render  Sa- 
tisfaction ;    fuch   a  Society  may  oblige  and  make  liable 
all  their  Goods  corporeal  or  incorporeal,  for  the  Reddi- 
tion  of  Satisfadlion.     Hence  it  was,  as  the  great  Jufii- 
nian  obferves,  That  this  Cuftom  was  conftituted  by  the  i„  j^^^^  ja/. 
Nations.,  grounded  on  the  Urgency  of  human  Needs,  af-52.  134.  c.  »- 
ferted   with    the  greateft  of  Necefilties :    Since  without  ^^'^^  ^^  i^junh 
this,    great  Licence  would  be  given  and  tolerated  for  the  j^^f^j^a  ^g 
committing  of  Depredations  and  Injuries  -,  efpecially  injure  JSat. 
only  the  Goods   of  Rulers  v/ere  made  liable,  who  fel- 
dom  poflfefs  any   thing,  that,    for  Satisfadion,  the  in- 
jured  may  eafily  come  by  ;  whereas  thofe  private  Men, 
whofe  Commerces  are  various,    may  be  catcht   for  re- 
compence,  fometimes  with   the  greateft  eafe,  and  freeft 
from    Danger.      Befides,    the    Owners   of   fuch   Prize  5^/^^^  -  ^^^y. 
being  Members  of  the  fame  Society^    might  more  ea-  58.  Barfoi.  de 
fily  obtain  mutual  right  for  fatisfadion  of  the  injur'd, ''^/'^^  f-  5- 
and   their  own  future  indemnity  than  Foreigners  could, '^^^^^•^*^*  ^" 
who  without  fuch  a   Tye  would  be  very  little  regar- 

IV.  Befides,  the  Benefit  of  this  Obligation  was  com- 
mon to  all  Nations,  fo  that  they  which  were  one  Time 
grieved  with  it,  another  time  might  be  eafed  by  the 
fame.  Moreover  that  this  Cuftom  was  received,  appears 
not  only  out  of  full  Wars  which  Nations  wage  a- 
gainft  Nations*  (for  in  thefe  what  is  obferved  may  be 
feen  in  the  Forms  of  the  ancient  Denunciations.  Pcpu- 
lis  prifcorum  LstinQrum^  hcminih/que^  frifcis  Laiinis  helium  Liv.  lib.  u 


28        iS>t  %tttm  of  aBarotte  ait D  \^tp;mt  Book  i. 

Lib.  11.         indico  facioque.     So  likewife  in  the  Propofal :  Vellent^  ju^ 
her  en  t  Philippo  Regi^  Macedonibufque  qui  fub  regno  ejus  ejjenfy^^^^^^  ^^^^^^'     ^^^  ^^  the  very  Decree  or  Proclamation 
£ap.  4.  itfelf :  Populus  Romanus  cum  populo  Hermundulo  hominibuf- 

que  Hermundulis  helium  juffit)    but  alfo   where  Wars  are 
not  come  to  that  fulnefs  of  War,  yet  there  is  need  of  a 
certain   violent   Execution  of  Right,    that  is  imperfedt 
Plutarch  Jge-  War.     Agefilaus  of  old  faid  to  Pharnahazus^  a  Subjed  to 
//.  the  King  of  Perjia  :    We^  O  Pharnabazus,  when  ^uve  were 

the  King's  Friends^  carried  ourfelves  like  Friends  towards  all 
his,  and  being  now  become  his  Enemies^  we  carry  ourfelves 
like  Enemies  ;  wherefore  feeing  you  will  he  one  of  the  things 
that  are  his,  we  do  jujlly  oppofe  him  in  you.  A  fpecies  of 
this  fort  of  Execution  by  Reprizal  was  that  which  the 
Athenians  called  apprehenfion  of  Men,  of  which  the  At- 
Archaohgia  tick  Law  (as  Mr  Rous  obfervesj  If  one  have  force  offer'' d 
Attica.  f^^j^  ^^^  ^^g^    1^1^  Kinfmen  and  Friends  moy  apprehend  Men, 

till  either  the  Manjlayer  he  duly  punifhed  or  yielded  •,  but  it  is 
lawful  to  apprehend  three  Men  and  no  more.      By  which  it 
plainly  appears,    that  for  the  debt  of  the  City,  which  is 
bound  to  punifh  her  Subjedls  that  have  hurt  others,  is 
Jierod,  to      tied  a  certain   incorporeal  right  of  the  Subjeds,  that  is, 
whom  It  was  j-j^g   liberty    of   taking  whom   they    pleafe,    and  doing 
mtke  WaVa- ^^^^  they  will  :    So  that  fuch  Perfons  fo  taken,  by  that 
«7ainft  the      Law   might    be   made  Slaves   until  the   City  did  that 
Arabians,       which  by   Law  flic  WHS  obliged  to  perform.     In  like 
might  hw-     manner   to  recover  a   Citizen  taken  Captive   by   mani- 
roration  ^'^'  ^^^  Injury,  are  the  Citizens  of  that  City,  where  the  In- 
Jo/eph.  lib.  6. jnry   was    done,    retained   by    Reprize,     Wherefore    at 
Carthage  they  would  not  fuffer  Arifion  the  Tyrian  to  be 
ti'^.lih.  34.  taken  •,  for,  faid  they,  the  fame  will  hefal  the  Q?i\'X.\\^g\n\dim 
at  Tyre,  and  in  other  'Towns  cf  Trade,  whereto  they  often 
■  refer  t. 

V.    A  due  Adminiflration  of  Juflice  is  not  the  leail 
itt?i{t,  wherein  Princes  are  ftiled  Gods  :    To  deny  or  de- 
lay Juftice   is   Injuftice  ;    Juflice   is   every  Man's  right 
who  hath  rot  forfeited  what  he  might  claim  by  the  fus 
C.^z fti^tent'ia     jf  therefore  the  Party  cannot  obtain    his   Definitive 
^'^^'^'^.^^2^*' Sentence  or  Judzment,  within  a  fit  time  againft  the  Per- 
conjiit.  Leg.     ^o"  of  whom  he  complains,  or  if  there  be  a  Judgment 
qui  rejiiiuere   givcH  againll  appar^t  Right  and  Law  \  yet  if  no  Relief 

de  ret  ^indic.  q^^ 

Chap.  II.  M'ltttmof^amtt  attti  JRep?lfaL      29 

can  be  had,  the  Bodies  and  Moveables  of  his  Subjeds, 
who  renders  not  right,  may  be  taken. 

VI.  In  the  Proiecution  of  which  there  mufl  be, 

1.  The  Oath  of  the  Party  injured,  or  other  fufficient 
Proof,  touching  the  pretended  Injury,  and  of  the  cer- 
tain Lofs  and  Damage  thereby  fuftained. 

2.  A  Proof  of  the  due  Profecution  for  the  obtaining  of 
Satisfaction  in  a  legal  way. 

o.  Protelation  or  denial  of  Juflice. 

4.  A  Complaint  to  his  own  Prince  or  State. 

5.  Requifition  of  Juflice  by  him  or  them,  made  to  the 
Supreme  Head  or  State,  where  Juftice  in  the  ordinary 
courfe  was  denied. 

6.  Perfidency  ftill,  in  the  denial  of  Juftice. 

AH  which  being  done,  Letters  of  Rcprizal  under  fuch 
cautions,  reftri<fl:ions,  and  limitations  as  are  confonant  to  . 
Law,  and  as  the  fpecial  cafe  may  require,    may  ifTue  not 
only  by  the  Jus  Gentium  and  Civile^  but  by  the  antient^..       _, 
and  municipal  Laws  or  the  Kingdom  *.  ^^  c.xo.  the 

latter  Claufe. 
Clauf.  7.  Johan.  Reg.  m.  22.  Pat.  15.  E.  3.  part.  2.  dorf.  48.  Pat.  23.  H.  6.  part,  2. 
dorf.  T4,   I  C. 

VII.  The  Reprizals  ^vznt2ih\t  by  the  Ijxs^soi  England^ 
are  of  two  forts.  Ordinary  and  Extraordinary,    The  Ordi- 
nary  are  either  within  the  Realm  or  without,  and  are  al- 
ways granted  where  any  Englijh  Merchants  or  their  Goods  Fitz.  H.  N, 
are  fpoiled,  or  taken  from  them,  in  parts  beyond  the  Sea^''^-  *H- 
by  Merchants  Strangers,  and  cannot  upon  Suit,  or  ^^^  pj/ j^J/l  i  a 
King's  demanding  of  Juftice  for  him,  obtain  the  fame,  14  h  6.  par. 
he  ftiall  have  upon  Teftimony  of  fuch  profecution,  a.'Writi-dor/.i^.iy. 
out  of  the  Chancery^  to  arreft  the  Merchants  Strangers  ^^^^^-5 -6. 
of  that  Nation  their  Goods  here  in  England  -,  the  which  ^g  ^2  £  1 
is  grantable  to  the  Subjedt  opprefted  of  Common  Rights  h^  par.  z.M.  25. 
the  Cbanceilor  or  Keeper  of  England^  who  always  in  fuch^<?^/.  2.  ^  4 
cafe  hath  the  approbation  of  the  King  or  Council,    or^^/-^H-J25. 
both,  for  his  fo  doing  ;  the  other,  which  is  for  fatisfadion  ^Ueycat^^zo, 
out  of  the  Realm,  is  always  under  the  Great  Seal.  i  Hak\  w/f, 

Pl.Cr  p.x'ol. 
They  are  either,  i .  Particular  to  particular  Perfons  upon  particular  Occafions ;  or, 
2.  General,  which  hath  in  a  great  Degree  the  Effeft  of  a  War,  though  it  is  not  a 
regular  War.     S(i  for  more  Matter  the  Place  cited  ;  or  above,  C^ap.  i .  Siil,  6. 

VIII.  But 

30        iOf  %tttm of  a^arquc an&  mpvi^ah  Book  i. 

VIII.  But  Letters  of  Reprizal  granted  in  the  Ordinary 
way  for  reparation  out  of  the  Realm,  which  are  always 
under  the  Great  Seal  of  England,    cannot  be  revoked, 
(though  perhaps  in  point  of  State  there  may  be  a  fufpend- 
ing  the  Execution   of  them  for  reafon  grounded  on  the 
publick  good)  and  the  reafon  wherefore  they  cannot  be 
annulled  or  revoked  is,  becaufe  after  the  Perfon  injured 
lez.  quirejli-  ^^^^  petitioned,  and  hath  according  to  Law  made  Out  by, 
tuerederei      proof  his  lofs,  and  Letters  of  Requeft  have  gone,  and  no 
<vindic,  reparation  made,  then  the  Letters  Patents  of  Reprizal  be- 

ing fealed,  the  fame  does  immediately  create  and  vefl  a 
National  Debt  in  the  Grantee  to  be  fatisfied  in  fuch  man- 
ner and  by  fuch  means  as  the  fame  Letters  Patents  do 
dire6l  out  of  the  Goods  and  Eflates  of  his  Subjedts,  who 
Vide  Treaty    refufes  or  protelates  to  do  right  (however  as  the  King 
1666.  Breda  hath  the  Legiflative  power  of  Peace  and  War  in  a  publick 
'^rt.  5.  Treaty  for  the  Nation's  good,  they  may  be  mortified, 

and  then  revoked  by  the  great  Seal  in  purfuance  of  that 
Treaty  j. 

Nor  do  I  fee  it  an  a6l  unjufl  internal  to  deny  the  Exe- 
cution of  fuch  Letters  Patents,  according  to  that  of  ^x. 
Paul^  Ml  things  are  lawful  for  me^    hut  all  things  are  not 
expedient.     Now  to  the  true  Interpretation  of  the  word 
lawful  flriftly,  it  is  to  do  a  thing  without  violating  the 
Rules  of  Piety  and  Charity.     Now  there  are  many  things 
amongfl  men  which  are  not  internally  jufl,  and  cannot  be 
done  without  violating  the   Laws  of  Charity,    yet  are 
^ini'Man.     lawful  to  be  done,  as  in  the  Law  of  the  XII.  Tables^  the 
Creditors  might  divide  the  Dekor^s  Body  amongfi  ther^L     So 
in  acquiring'  fatisfadion  for  Damages,    the  Lives  and 
Goods  of  Innocents  may  be  involved  in  Death  and  De- 
ft ruiflion,    Vv'hofe  peaceable   Tra6t  in   Commerce  never 
gave  them    knowledge  of    this  privatum  Bellum,    nor 
were  they  Adlors  in  the  Injury  original.     'Tis  true  ex- 
Omnia  dat  f«;ternally,  according  to  that  of  L//r^;/,  That  Prince  or  State 
jujta  negat.     that  denies  me  rights  gives  me  all.     But  the  incomparable 
Oral,  pro       Cicero  obferves,  That  there  are  fome  Offices  to  he  done  to  them 
Baih.  from  whom  you  have  received  (in  Injury^  for  revenge  andpii- 

nifljment  mufi  have  a  meafure.  Now  if  the  fupreme  Power 
does  think  that  the  Execution  of  fuch  Letters  of  Repri- 
zal cannot  well  be  efFe6led  without  endangering  the 
Peace  of  both  Eftates,   there  may  be  a  juft  caufe  to  ref- 

chavm  Mttttm  of  ^avdmmximmmi      3  r 

pite  the  Execution  till  a  time  more  convenient  may  oc-  Eji  enim  ali- 
rnr    for  that  the  Lives  and  Eilates.  of  thoufands  may  be  ?^'"^' f^"'^  «''« 

^     ',.1  ••  r  T-  -^j  oporteaty  etiam 

involved  m   the  repairing   of  one  Injury,    private   and  J}.^^^  '^^^ 
peculiar:  Nor  do  1  fee  the  fame  to  appear  repugnant ^,oM/7fl»^. 
to  the  Laws  pofitive  that  have  been  made  for  the  award- 
ing thofe  CommiiTions.      ■'Tis  very  true  the  t  Statute  t4H'tf»5.c.7. 
reciting,    "    That  at   the  grievous   Complaints  of  the 
"  Commons  o^  England ^  who  hadfuffered  many  Wrongs 
*'  and  Injuries  in  the  Lofs  of  their  Ships  and  Goods  upon 
«'  the  main  Seaagainft  Leagues,  fafe-Conducls,  and  Tru- 
"  ces  which  were  broken  by  the  Subjects  of  other  Na- 
"  tions,   the  fame  Parliament  reciting  their  willingnefs 
*<  to  provide  Remedy  and   Relief  for  the  grieved  by 
<'  fpoiland  injuries  done  unto  them  beyond  the  Seas,  up- 
"  on  Complaint  to  the  Keeper  of  the  Privy-Seal   (on  full 
"  evidence  fhewn)    he  fliall  fign  Letters  of  Requeft:  to 
<«  demand    reftitution    and   reparation   to    the    Parties 
"  grieved  :  Which  if  not  made  in  convenient  time,  then 
"  the  Lord  Chancellor  of  England  fljall  grant  Letters  of 
*'  Reprizal  in  due  Form  of  Law  for  the  Indempnity  of 
*'  the  Perfons  interefted  and  injured."     Yet  this  does  in 
no  refpedt  reftrain  the   King's  Prerogative  and  Autho- 
rity, which  he  had  at  the  Common  Law  in  the  judging 
the  conveniency  and  time,  when  to  be  executed.     Nor 
does  the  fubfequent  Statute  f,  reciting  :  "  WiljZltdi^  Bl- ti4^/4.<r  4. 

"  Decs  great  offenceis  uiete  often  commtttea  asainff 
"  jLcasuegjCuiices,  auD  amities  bettnecn  tfjei^mg 
"  ano  otijei*  ^mtzr^  o?  S)tate0,  agatiilt  fafe-Con- 
^'  Xim^  ana  licences^  anD  againfi  t&e  iLatug  ana 
^'  ©tatutcg  of  tfje  Eeaim  (m  tljat  cafe  mace  anQ 
''  P^oniCeD)  to  tlje  great  (iantiei:  of  one  ©otjcrergit 
^'  tm  tlje  MM'^  ana  tlje  Damages  of  tije  gooti 
^'  %\x\s\za&  tlje  Commons;  of  Enghnd.  3it  m^ 
'^  muXm  fiDjoainen,  (Eliabliajec,  enacted,  ana 
^^  ConficmeB  Op  tlje  Ccnfent  of  tljelo?tis  ©pirttuaf 
^^  anD  CempojaL  ana  Commons  afiembieti  in  {Mi- 
"  liament,  Cftat  all  ©tatntes  anB  £)j5inanceg 
*^  againtt  tlje  ©ffentiers  of  leagues,  duces,  fafe- 
''  Concuets,  ano  Sinuties  ftallbe  in  fuUfojce,  n- 
'^  cepting  tfje  Claufe  m  tlje  act  toWcti  maue  it  Oiglj 
''  ^teafon  m  tlje  feecono  ^eat  of  Hen.  5.   xhere^ 

fore  it  is  plain  there  were  Statutes  made  for  the  more  ef- 

iSDf  jdettcrg  of  ^avaue  ana  istp?i?at  Book  i; 

fe6lual  providing  for  the  Subjed,  and  Letters  of  ReprU 
fJohan.Reg.z^lSj  they  being  granted  long  -f  before  the  Statutes,  and 
fneml^  22.  the  King's  Prerogative  not  the  leaft  diminifhed,  but 
f^^"^5--^^-3-i-emainino;  at  the  Common  Law  to  iudo;e  when  expe- 


IX.  And  fince  the  granting  of  Letters  of  Reprizal 
does  not,  in  the  ordinary  way  for  particular  fatisfadion, 
amount  to  a  breach  of  the  Peace,  I  have  thought  fit  for 
the  excellency  and  care  that   is  had  in  the  compofing 

Fi^e  §.  15.  and  framing  of  them,  to  recommend  one  that  was  grant- 
pojlea.  ed  upon  Solemn  Advice,  and  for  the  Reafons  therein 


X.  The  Extraordinary  are  by  Letters  of  Marque ^  for 
reparation  at  Sea,  or  any  place  out  of  the  Realm,  grant- 
able  by  the  Secretaries  of  State,  with  the  like  approba- 
tion, of  the  King  or  Council,  or  both  ;  but  they  are  on- 
ly during  the  King's  Pleafure,  and  to  weaken  the  Ene- 
my during  the  time  of  War,  and  may  at  any  time  be 

T/lachia'vel  on  XI.  As  PrInces  by  the  Laws  of  Nations  are  refponfiblc 
his7//.Z-/i/.  C.  for  injuries />;^Z'//V/^,  fo  lliould  they  by  the  mod  prudent 
A  Prince  in  ways  imaginable  prevent  thofe  that  are  private^  not 
J^j^^j^.^^'^S^fuffering  Foreigners,  if  pofTible,  to  receive  wrongs  in 
try  but  for  a"^i"^cii^  Countries  :  For,  as  the  Florentine  obfcrves.  If  a  Man 
Xcad  of  he  exceedingly  offended^  either  by  the  publick,  or  by  any  other 
fihcep. Skins,  private  handjin  a  Foreign  Nation^  and  cannot  obtain  repara- 
Philip  Comines  ^^^^  accordin?  tojufiice^  he  will  never  leave  blowino  the  Coalsy 
Ditcii  Bur-  ^^  ^^^fi  promoting  tioe  injury^  tilt  the  fiame  break  out  into 
guild.  War  •,  in  v;hich  he  cares  not  if  he  fee  the  ruin  of  that  King- 

dom  or  State,  where  he  received  his  wrongs. 

Nor  fliould  the  Prince  or  State  of  the  Perfon  injured, 

value  his  Misfortune  at  fo  low  a  Rate,  as  to  deny  him 

Letters  of  Requeft,  for  that  were  to  heap  up  injury  upon 

7,eg.  qui  r^j?;- injury  ;    but  likcwife,  if  Judice  be  denied  after  fuch  re- 

tuerederei     qutd,    to  arm  him  with  pdwer  to  take  fatisfaclion  by  re- 

innduat.        prife,  «t;/,  manu  &  militari. 

Generally  there  always  proceed  Letters  of  Requeft^ 

two  or  three,  more  or  lefs  ;  and  according  to  the  fatisfa/ 

<5lion,  fufficient  or  infufficient,  returned  in  anfwer  to  the 

fame,  Commifilonsare  awarded. 

Resjudk.  fro      XII.  SubjeEls  cannot  by  force  hinder  the  Execution  evett 

<veritate  habe-  ^^  r^^  unjuft  Judgment,   or  lawfully  purfue  their  right 

tun  yet  It  18  J         ^      o  J    s:  o 

,  Ch  AP.  II.  £)f  %ttttv&  Of  ^atqttt  ana  mtp^i^ah      3 1 

by  force,  by  reafon  of  the  efficacy  of  the  power  over  them  :  as  true,yu^ejs 
But  Foreigners  have  a  right  to  compel,  which  yet  ^^^^ey^^^^Vy^^^^^ 
cannot  ufe  lawfully,  fo  long  as  they  may  obtain  fatisfa-^^J/^f^"^    ' 
6tion  by  Judgment.     But  if  that  ceafes,  then  Reprizal  is 
let  in. 

XIII.  Now  Judgment  is  obtained  either  in  the  Ordijiary^^  cum  per  in^ 
Courfe,  hy  W2iy  o^  Profeculion^  or  Suit ^  ox  Appeal  fxom  tht^]^^^^^^'^^^^' 
fame,  after  Sentence,    or  Judgment  given,    to  a  higher ^«^^^^//^^;V 
Court ;  or  elfe  in  the  Extraordinaryv^'^y y  which  is  by  vi2iynonfuipt,  aB* 
of  Supplication,  or  Petition  to  the  Supreme  Power  ;    but^"''^^  ^^^^j. 
we  muft  underftand  that  to  be,  when  the  matter  in  ^^^-^ZtumfL]  ^ 
troverfy  is,  tarn  quoad  merit  a  quam  quoad  modum  procedendi  \qucsritur  an 
not  doubtful,  for  in  doubtful  matters  the  prefumotion  \%[oluto  dehitori 
ever  for  the  Judge  or  Court.  .         ,  rejutm  earn 

But  the  Reprizal  muft  be  grounded  on  wrong  ^^^^g-tt'oTllSu 
tnent  given  in  matters  not  doubtful,   which  might  h.^yt rejiituendam 
been  redrefled  one  way  or  other;    either  by  the  ordinary ^^^j^^i'^'^,  Leg. 
or  extraordinary  power  of  the  Country  or  Place  j   and-^^'^f^^^^"*.^* 
the  which  was  apparently  perverted  or  denied.  ^J'^-Pi  • 

But  if  the  matter  be  doubtful,  then  otherwife  ;  for  in 
Caufes  dubious  or  difficult,  there  is  a  prefumption  always 
that  Juftice  was  truly  Adminiftred  by  them  who  were 
duly  Eleded  to  publick  Judgments. 

XIV.  And  yet  in  this  latter  Cafe,  fome  *  are  of  Opinion,  *  ^^^^f^  ^eki- 
that  if  the  Cafe  were  dubious,  and  if  the  Tudg;ment  were^/'*'  hcet  abfa- 

.    n  T>,-i  io  rrj-1-         tutus  fit  naturct 

againft  apparent  Right,   the  Stranger  opprefTed  is  let  into ^^^,^  ^,^,v,^ 
his  fatisfadlion  ;    and  the  reafon  is,  becaufe  the  ]u<^^d's  per  mane  t.Pau- 
Authority  is  not  the  fame  over  Foreigners^  as  over  SuhjeBs^  i^^  Leg-  Julia 
for  the  reafon  above-mentioned.  %tor!'^'  '"*' 

If  an  £;?^/z/^  Merchant  fhall  profecute  a  Suit  in  the  Or- 
dinary Courts  of  the  Law  beyond  Seas,  and  Sentence  or 
Judgment  fhall  pafs  againft  him,  from  which  he  appeals 
to  the  Supreme  Judgment^  and  there  the  firft  Judgment  or 
Sentence  is  affirmed,  though  the  Complainant  hath  receiv- 
ed a  Judgment  againft  the  real  Right  of  the  Caufe,  yet 
this  will  be  no  caufe  for  Letters  of  Reprizal,  though  per- 
haps it  rhay  occafion  Letters  of  Requffi  (if  there  be  ftrong 
tifciimftances  for  the  fame)  to  have  a  rehearing  of  the 

But  if  ah  Engtijh  Man  fliall  recover  a  Debt  there,  and 
then  the  Officer  having  the  Debtor  in  Cuftodv,  will  wil- 

G  fully 

3 4       ^t  letters  of  ^av(\m  antj mep?(?at  b o o  k.  i. 

fully  let  the  Prifoner  efcape,    and  then  become  infolvent, 

the  fame  may  perhaps  occafion  Reprizal. 
h^ullivevde-        \n  England^  If  a  Foreigner  bring  an  Adlion  Perfonal 
mus,  nullt  ne-  ^p-j^jp^-  J  ^^  and  thc  matter  is  found  fpccial  or  z^neraL  andii 
deferemui       ^^^^  P'^'^Y  P^^Y^  Judgment,  and  the  Court  refufes  it  -,  andft 
jufiit'iam,        then  the  Defendant  dies,   and  with  him  the  Adlion,  (th©_^ 
Grand  Char-  nature  of  it  being  fuch)  the  Party  is  here  without  Re*|) 

^^^M  '6       "^^'^Y'  ^^^  ^^^^  ^""^y  occafion  Letters  of  Reprizal,    if  itjj 
'  '  ^  '      be  accompanied  with  thofe  Circumftances  that  evince  an^ 
apparent  denial  of  Juitice,  i.  e,  as  putting  it  off  froni|| 
^erm  to  Term  without  caufe.  ?g 

An  Englijh  Man  purfues  his  Right  in  the  legal  Courts'fi 
beyond  Seas,    and  the  Military  Governor  oppofes  the 
profecution,  and  by  force  conveys  away  the  Debtor  and'«l 
c  {^  {  ^^s  Goods,    the   Sentence  or  Judgment  is  obtained  :  its 

Slaughter,      ultimate  end  being  Execution^  being  thus  fruftrated,  may 
Z^eagainil the  occafion  Letters  of  Reprizal. 

Governor  of       XV.  Perfons  murder'd,   fpoil'd,  or  otherwife  damni-  *. 
fhfpe'tkionoffi^^  in  hoftile  manner,  in  the  Territories  or  places  be-'" 
GW^and      longing  to  that  King,  to  whom  Letters  of  Requeft  are 
Canha?n  mer-  iffued  forth,    if  no  fatisfaclion   be  returned.    Letters  of 
^^°^^' j"      Reprizal  may  ifTue  forth  ;  and  the  Parties  Petitioners  are 
whTch  two°""°^  ^"  ^^^^  ^^^^^  compelled  to  refort  to  the  Ordinary  pro-;'^ 
Letters  of  Re- fecution  :  But  the  Prince  of  that  Country,  againft  whom^ 
queft  were      the  fime  are  awarded,  muft  repair  the  damage  out  of  his  • 
lent  to  the      ^j.  j|^g|j.  gftates,  who  committed  the  injuries  ;  and  if  that 
¥ufaim  "fo^r°  P^ov^s  deficient,  it  muft  then  fall  as  a  common  Debt  on 
redrefs.'         his  Country. 

Such  Letters  of  Requeft  generally  allot  a  time  f  cer- 
MafTacre  at  i  ^^"^  ^^^  Damages  to  be  repair'd,  if  not,  Reprizals  to  ilTue 
AmboyrM,  andforth  :    A  fingular  Example  of  which  you  will  find  here- 

the  other  de-  under, 

'Committed  by  the  Flemings  on  the  Englijh,  his  Majefly  in  1625,  ifTued  forth  his  Let- 
ters of  Requeft  to  the  States  of  Holland;  for  Satisfadlion  within  18  Months,  otherwife 
Letters  of  Reprizal.  /''/V^  Journals  of  that  Year,  ^nd  Leo  Jiizma,  ^.  4§.  13.  41.  82.' 
So  likewife  Letters  of  Requeft  went  to  the  King  of  Spain,  requiring  Satisfaction  for 
the  depredation  committed  on  the  Ship  and  Goods  of  Mr  Sfampe,  who  Was  fpoilcd 
and  murdered  at  the  Hu'vanna,  Anno  1674..  /^/Wi?  the  Proclamation  1675.  of  Reward-" 
promifed  by  his  Majefty  for  the  apprehending  the  Offenders  dead  or  alive. 

A  Copy  of  Y^HARLES  the  Second,  by  the  Grace  of  God,  of 
fen"^"f^^"  ^^  England,  Scotland,  France,  and  L'eland,  King,  De- 
fpecial  Repri-f<^^der  of  thcFaith,  ^c.    Co  alt  Cil2(ffla«  People,  to 

2  ttj{)gm 

Chap.  II.  Of  Letters  of  Marque  and  Reprkal.  ^S 

ixiijom  tfjefe  |0?erents  fljall  come,  greeting:  zaisfrom  the 

WHEREAS  Otli:  fOWnp:  g^UbfCCt  WiUiam  CounenA''!Z^^ Great 

cfH;  ncceafcD,  ano  l)i0  jpattneris  ^itno  1643.  bP  tlje^;;;;;"^^."^^^^^ 
neprecation  ano  ftaftileact  of  one  Oaiiand,  Com=  seai  of  £;;^. 
mmut  in  cDief  of  CtDO  @!ji})0  befongtUB  to  tfje/w)  againn 

eaft  inDia   Compaiip  of  tije  Netherlands,   m$  be-  j!?^  States- 
tmm  Goa  aim  Maccao  lit  tlje  ©traiffWS  of  Malacca  Y':"''^^^^^^^^ 

DepjiticD  ano  nioft  iniutioufi?  fpoitea  of  a  certain  inroiied  in  the 

®ljip  nameU  tlje  Bona  Efperanza,  mXl}  Of  IjCC  Cacft^  High  Court 

ling,  flppate!,  anD  fucnitnre,  anti  all  tfte  ©oot^gi  of  chancery, 
anD  laaniff  in  Ijer,  upon  a  Derp  ftopeful  tta'oino;  ([iop--}?  ^^">  ^s- 
age  to  china,  iDljicl)  Uiere  cameD  to  Batavia,  ana^'"'  ""* 
there  all  de  fado  luitljout  »ne  ^jocefs  of  jLato  confif- 
cate».  ^nti  tfjat  alfo  in  tfje  fame  J^ear  another 
(aoen  %m  of  ©ar  UiiD  ©ubfect,  caiieD  tlje  Henry 
Bonadventurej  being:  comc  on  ©iGuuti  near  t&e  3iflano 
Mauritius,  m$  ti)ttt  botlj  ®ij!p  anD  ©OO»0  feijcD 
[ipon  bp  fome  of  tlje  ©fficerg  ano  a^intilerg,  anD 
otljers  unoer  tlje  ConimanD  of  tlje  faiQ  (£afr3int!ia 
Eompanp,  ano  utterip  netatnen  from  tlje  rfg^t 

mmtS.    AND  W  Fl  E  R  E  A  S  t&e  faft  William 

:ourten,  m\}  lj!0  Mm&  ^^^  W  life  time,  ufea  alf 
joffible  enneaDouriS  to  recover  tU  fairs  Sljips  ana 
Saofisi,  ann  to  procure  furtber  3!ufttce  agafnl!  tlje  ®a^ 
efa(to?0,  ann  pet  couio  obtain  no  Eeftitution  o|  ®a- 
:isfactian,  toberebp  tljep  became  mucb  to  be  Diffreflen 
nin  utterip  unoone  in  tbeir  €(!ate  ano  CreOit  t  ^no 
liat  thereupon,  anD  upon  tlje  moll  fjumble  ©uppli^ 

:ntionjSl  ano  ;aOO?eirej5  of  Francis  CEar J  of  Shrewfbury, 

iiiO  William  Courten,  Cfq*.  ©^anO-dCbilo  ano  |)eir  of 

IjefaiO  Sir  William  OeceafeO,  sir  John  Ayton  anOSir 
idmond  Turner  l^nlffljtlS^  George  Carew  aitO  Charles 

^Vhicaker  (iEfquire0,  on  tlje  beljalf  of  t&emfelSies  anti 
JiSetiSi  otljers  interefleo  in  tlje  faiO  ttoo  ®W$  Bona 

ifperanza,  anO  Henry  Bonadventure,  anO  itt  t^t 
EttateS  of  tbe  faiO  sir  William  Courten  BCCeafeO,  Sir 
idward  Littleton  TBaronet,  anO  Sir  Paul  Pindar  Jl&nigbt 

5Eccafco,  t&at  mz  mm  ta&e  tbetr  Cafe  into  SDnt 
minmp confioeration.  weoutofajust 
5ENSE  82Je  tljen  baO  anO  ffill  Ijabe  of  tbeir  mnuS 
bufferings  in  tbat  buflnefs •,  botfj  bp  Our 
3U)n  letters  unoer  our  sign  Manual  to  tl)c 

States-General  Of  tljC  United  Provinces,    anO  W  Sir 

C  2  George 


36  Of  Letters  of  Marque  and  Reprizal.     Book  lljl 

•       George  Downing  lUttfflJt  ailB  IBatOnCt,  2DUt  CntiO^ll 

cEirtraozliintup,  to  luljom  Mlc  ga^e  ^fpecial  €am^ 
manti  fc  to  no,  rcquireti  fattgfactioit  to  be  niafie  i»^| 
co?OiiiD:  to  tlje  Eiucs  of  Suflice,  ano  tlje  aniiti?  aiui 
good  co;;iefpon6cncc,  tuljiclj  UXz  tijrn  UeOteD  to  con^ 
fecac  toit&  tljem  ficm  ana  intiiolable*  a  n  d 
WHEREAS  after  federal  atiDjeires  niatie  to  tSe 

faiD  States- General  bP  OUt  faiO  CtlbOP,  anO  nOtfjttlg 

gtaiitea  effectual  foi  Eelief  of  SDur  faiD  ©ubiectj, 
(toliom  tue  tafee  SDiitfelbcs  in  l^onour  aiiO  3«ff(cj, 
conc£trte5  to  fee  fatigfien  anti  repaiU)  ^e  iateto 
commauoen  tlje  foto  sir  George  Downing  to  (nttmaft 
nno  fignifp  to  tlje  ratn  States,  tljat  toe  ei:pectea  tbeft 
final  anfUier,  concerning  fattgfaction  to  be  mk 
fo?  tlje  faiD  @l)ip0  ann  <©oo5S  bi>  a  time  t^en  p?^- 
firea  ana  frnce  elapfea,  tljat  mz  misljt  fo  goaent 
£)ur  felbeis  tljereupon,  tljat  ©ur  aforet'aia  ©ubiectjs 
miBljt  be  reliebea  accoraing  to  Eigbt  ana  3utticg; 
ana  pet  no  fattsfactorp  ^nftoer  Ijatlj  been  giDen,  fo 
tbat  OUe  cannot  but  app2eljena  it  to  be,  not  onlp  a 
fruitlefg  Cnaeabcur,  but  a  p?oft!tuting  of  laDur  %^ 
iiour  ana  Dtgnitp,  to  make  furtijer  application 
after  fo  \wm  aenialiei  ana  fligfitingis*    ANp 

WHEREAS    John    Exton,    DoCtOr    Of    IM% 

2uage  of  our  iptglj  aamiraltj?  Court  of  England, 
upon  our  Conmiana,  to  certify  to  CIS  tlje  aialue  ^\ 
t&e  loffes  ana  Damages  futtainea  bp  tlje  faia  m 
liam  Courten  aua  PartuetSj  toljofe  Sinter^a  is  ndlD 

fteffea  \\\  our  lObing  ®UbfeCtS,  sir  Edmond  Turner, 

ffitnigfit,  ana  George  Carew,  cfq,  aua  Ipartncuft 
ftatlj  upon  full  Cramination  ana  l^^oofs  tbereo! 
niaae  bp  axUitneKes  in  SDur  Diglj  Court  of  amiii- 
taltt«,  repo?tea  ana  certifiea  unaer  ijis  l^ana,  t|)at 
tbe  fame  ao  amount  to  tlje  ©urn  of  ©ne  ipunarei 
fiftp  one  Cljoufana  fir  |)unarea  ana  ttoelbe  I'ounasi^ 
NOWKNOWYE,  ctiat  foi  a  full  rettitution 
to  be  maae  to  tbem  fo?  tbeir  ^ljips>  <Sooas  m 
^ercbanaijes,  of  inljiclj  tbe  faia  wiiiiam  Courten, 
ana  tbe  siirigns  of  tlje  fata  Wiiiiam  courten  anti 
ISartners,  toere  fo  aefpoilea  as  afoiefaia,  toitb  all 
fuclj  Cotts  ana  Cljaiges^  as  tljep  fiiall  be  at  fo?  tje 
recoberi)  of  tlje  fame,  Mie  bp  tlje  aaaice  of  ©iii; 
f  2tbP  Council  ija^e  tfiougljt  fit,  ana  bp  tljefe  lP?e- 



Chap.  II.  Of  Letters  of  Marque  and  ReprlzaT.  37 

fentis  BO  (r?ant  licence  ana  srut&mft))  unfier  ©ui: 
0tznt  @cal  of  England,  unto  Qut  fain  &ubiects  sir 

Edmond  Turner  attt!  George  Carew,  tljeiC  eereClltO?g,  . 

aftmmiffrtitorg  ano  affigns?,  fo?  ano  on  tije  beijalf 
of  tf)emfe{Dt05  ana  otfter  petfons  intercffeD  as  a- 
fojefatD,  to  equip,  \)\amh  futniflh  anti  to  fet  to 
fe>ea  fcom  time  to  time,  fuel)  anD  fo  man?  ®|)tpis 
nnn  15)inaccs  as  tDep  fljaii  t&inft  fit.  provided, 
altoaps  tijat  tf)ere  be  an  (Bwuy  maoe  auo  ixcocBeti  in 
tlje  aomtraltp  Court  of  tlje  Bamt0  of  alt  ^Ijips 
ana  QetTelg,  anii  of  tljeiu  HBmmx  ano  ammmiition, 
ann  fo?  ftom  long  time  tfjep  ate  aictiiallen :  ano  alfo 
of  tlje  i3ame  of  tbe  Commantiee  tljereof>  befoje  tlje 
fame  0?  mv  of  tljem  be  fet  f02t&  to  @ea  ^  ^m  \iiittt 
m  faia  ®ljips  ann  pinaces  lip  fojre  of  atmis  to  fet 
upon,  take  ana  app^efieno  anp  of  tfie  ©fiips,  ©ooosf, 
ponies  ann  ^eccljanaijes  of  tlje  states  General,  0? 
anp  of  tbe  ®ubject0  mljabitino;  tettlnn  anp  tbeit  Do- 
minions 02  Cercito^ieS,  tofcetefoeaer  tbe  fame  fljall 
be  founo,  a  no  not  in  anp  Pmt  0?  |)atboui:  in  Eng- 
land,   0?  Ireland,  tmlCfS  it  U  tl)Z  §)!}ipS  OUtl  ©OOBS 

of  tbe  i^arties  tftat  Bun  tbe  sajcons*  ^na  tbe  faia 
®ljtps  ano  ©ootis,  ironies  ana  seercbanfiijes,  be- 
ing: fo  taken  ana  btougbt  into  fome  pp?t  of  SDur 
Eealms  ana  Dominions^  an  Jnuentojp  tljeteof  fljall 
be  taken  bp  autbo?rtp  of  ©ur  Court  of  ^amtralti? 
bv  tbe  31uage  02  Jfuageis  thereof,  fo?  tbe  time  btinSy 
upon  proof,  maoe  before  bim  0?  tbem,  tljat  tbe  faiO 
§>bipS5  ©ooas,  Mares,  ^^ercbanaif es  or  #0nej?,aiD 

belong  to  tl)Z  states  General,    C|  anpof  tljC  ^UfejeCtS 

as  acojeftita.  Cljat  tbep  iDaU  be  imM  prt?e  to 

tbe  fata  sir  fidmond  Turner  anO  George  Carew,   tljCiC 

(]£,recnto?S5  StaminiRratojs  ana  ^fiSgns  as  afbre- 
faia,  to  retain  ana  keep  in  tbeir  o?  anp  of  tbeit  i3of- 
feffions,  ana  to  make  fale,  ana  aifpofe  tbereof  iit 
open  Market  0?  botofoeS3er  elfe,  to  tbeir  ana  eberp 
of  tbeir  bed  aasantage  ana  isenefit,  in  as  ample 
manner  as  at  anp  time  beretofo?e  batb  been  accu^ 
ftomea  bp  toap  of  Eepiijai,  ana  to  babe  ana  eniop 
tbe  fame  as  lawful  #?i5e,  ana  as  tbeir  oton  p^opec 
oSooas:  so  THAT  '^  NEITHER  Captain, 
''  ©afler,  no?  anp  of  tbe  Companp,  tbat  (ball  ferbe 
V  in  tits  oton  p?rton^  o?  (ball  pjomote  ana  aabance 

c  ^  ?>  m 

3^  Of  Letters  of  Marque  and  Reprizal.      Boo  k  I. 

<^  tfje  fain  entcrpjlfe  (n  niannec  ana  fojm  afo'craiB, 

^'  ftiall  in  mxp  manner  of  toife  be  reputeu  n?  cljal- 

.    ♦'  lentyeo  fo?  anp  ©ffenner  njjainft  anp  cf  our  tm^, 

'  ^'  anti  tljat  alfo  it  fljall  be  latofiil  for  ail  manner  of 
<'  perfons  as  tuell  onr  fe^abfectg,  as  anp  otiier,  to 
^^  bt!P  tije  faiU  g^ljfps,  ©ooiis,  ano  SEJercljanDijes 
^«  fo  tafcen  ano  npp^eljenCeD  bp  tije  faio  Captaing, 
^  ^^  ^aifers  ann  ntljers,  ann  aD)iittin:eD  as  afo^etaio, 
''  luitijcnt  anp  Damage,  tofs,  i^mucance,  Croii- 
'^  ble,  0?  molettatiou,  oz  incumbrance,  to  befal  tlje 
^«  fain  mimSy  o?  anp  of  tljem,  in  as  ample  anu  laui- 
*'  ful  manner,  as  if  tlje  Sljips,  ©oons,  CDHares^  ano 
^^  a3ercbanbi?e,  ijao  been  come  ana  gotten  bp  tde 
^«^  !aU3fnl  Craffick  of  a5ercbantS)  o?  of  iuft  pjijeu 
^^  in  tije  ^ime  of  open  mm  provided  al- 
loaps*  tljat  all  feftips,  ©oofls,  ana  asercJjanaije, 
tahen  bp  Wcttie  of  tljts  ©ur  Commiffion  fliall  be 
feept  in  fafetp,  ana  no  part  of  tljem  uiaSea,  fpoilea 

V  0?  Biminifljea,  o?  tlje  wnlbi  tljereof  b^ofeen,  until 
Siuagment  ija^e  firft  paft  as  afo?efaia,  tijat  tljep 

s  lire  tbe  ^fjips  ana  ^ercljanai^cs  of  tlje  states  Ge- 
neral, 0?  fome  of  tljeir  subjects  as  aforefata.  3na 
If  bv  colour  of  tbis  our  ComnnfQon,  tbere  fijall  be 
taben  anp  ©{jips^  ®ooB0,  or  asercbanaijes  of  anp 
of  our  lobing  ^utjectS)  oj  tbe  Subjects  of  anp 
grince,  0?  ©rate  in  gooa  league,  o?  amitptoitft 

&$  fe^Cept  tlje  States  General)  0]  tljeft  fe^UbjeCtS  aS 

afojEfaia,  ana  tlje  <©ooas  tfjerein  laaen,  foia  ana  cm- 
bejj^elea,  oj  aiminifljea,  oi  tfte  ii^uife  tbereof  b?ckcn 
in  anp  place  before  tljep  ftali  be  aajuagea  to  be- 
long to  tfte  States  General,  0?  fOUie  Of  tbetC  ©UbjCCtS 

as  afoaefaia,  tbat  tben  tljts  CouniufOon  ftall  be  of 
no  Sufficient  autbotitp,  to  tafee  tlje  fata  &bips» 
®ooas  ana  ^ercbanaijeiSj  bi  to  warrant,  oKabe 
Sarmlefs  fuclj  as  fljall  receibe,  blip  o?  intermeaaie 
tljerein  •,  but  tbat  botb  tlje  prices  fo  tafeen,  ana  tbc 
fata  &l)rp  of  taiar,  fljall  be  confifcatea  to  our  2lfet 

*^  AND  FURTHER,    UiZ  BO  JjCrCbP  acclarf, 

'^  tbat  it  is  our  mui  ana  i^^ieafure,  tijat  tbiS  SDuc 
^^  CommifTion  Ojall  remain  in  full  fojce  ana  poU)er, 
*-'  to  all  intents  ana  purpofes>  until  tbe  faia  sir 

<•  Edmond  Turner,  aua  George  Carew,  tljCir  €K£CH- 

^'  tois,  saamimfttatojs^  ana  affigns^  as  afo?eiaia; 

''  lual( 

Ch  AP.  L     Of  Letters  of  Marque  and  Reprizal.  j9 

fi  'ymn  bp  fifmie  tijeitof  {?aUe  bp  fo?ce  of  arms  ap-  * 
fl  'rpieimmii,  taken,  filseo-  recoSBC'D;  ajrt  receitieii 
^r  from  tije  faio  states  General,  0?  tijeiu  ^ub)rct0,  one 
"  i)mmm  fiftp  one  ttjoufanH  Gi:  ljuno?eli  anli  ttoibe 
"  #oanii3,  acco?tiinff  to  tt)C  appjaifcment  to  fe 
*^  maDc  bp  fufflcient  app?aifers,  upon  ©atlj  nonu= 
''  nateti  a»a  outljoifjeD  in  2Dut:  liuD  Court  of  38- 
''  niiraltp,  of  all  fucfj  MiVS.  ©ooBjS,  ©Hare0,  ano 
'*  SPercftanBi?e0,  as  ftall  be  tafeen  from  tlje  fain 

''  Stares  General,  0?  aiip  Of  tbClt  ^UbjCCtS,  b^  Wr- 

'^  tue  of  tins  CommiifiDH,  o?  fijail  ctljcrtoaps  re- 
^^  cetie  fatisfactton  of  t&e  Debt  afo?efatO)  bp€om^ 
''  pontion  to  be  maoe  betujeen  tbofe  of  tlje  mtt 
''  3nDia  companp  of  tije  Netherlands,  aiiB  tlje  faia 

^  Sir   Edmond   Turner,    ailO    George    Carevv,    tl)2it 

''  €,recuto?05  ammniGrato^S  ana  affign^,  as  afo?e- 
«  faiti*  NOTWITHSTANDING  It  fo  Ijappen,  tlje 
"  p^efcnt  Difference  bettoeen  €ls,  ana  tbe  States- 
"  General,  aepenoing  upon  general  Eepjifals^  map 
**  be  agixea  ana  compofea,  ana  t&at  in  tU  3inte- 
'^  rim  a  ^aeace  ana  gooa  Co?refponuence  mop  be 
''  reneiDea  bettoeen  ais  ana  tbe  fata  States  General : 

''  In  which  Cafe  ncverthelefs,    3It  (S  SDUr  mtU  aUB 

«  pleafiire  tljat  in  tlje  etetntm  of  tt}iS  ®ur  Com- 
''  mMoih  m  fiJiolence  fljall  be  aone  to  tfie  3^erfons 

^^   of  ttje  fata   ©UbjeCtS  of  tlje  faia  states  General, 

^'  but  onlp  in  Cafe  of  Eefiftance.  ana  tljat  aftec 
''  in  cola  TSlooa.  tbe  .^ubiects  of  tljt  fata  states 
''  General,  if  l)jirt  or  ttJounaea,  fljall  be  ufea  toitlj 
"  all  coni^enient  office  of  Ijumanitp  ana  feinanefs. 
"  AND  FURTHER,  fflur  l©i!l  ana  picafure  is, 
"  Cljat  altljouglj  it  Kjail  Ijappen  tljat  all  i^offili^ 
^^  ti>  bettueen  Qs  ana  tfie  states  General,  ana  SDnt 
<*  refpectiSe  subjects  (ball  ceafe,  pet  tljts  ©ur  Conv 
'^  miifion  fljall  remain,  ana  be  m  full  jfo?ce  ano 

*^  ?^0lner,  to  tbe  faia  Sir  Edmond  Turner,  SUa  George 

^*  Carew,  tljeir  ci;recuto?s,  9aminiOrato?s,  ana  9f* 
''  fiffns,  as  afo?efaia,  bp  iirtue  tljereof  to  app?e* 
*'  bena,  tafee  ana  feije,  bp  iToice  ana  armg,  fa 
''  nianp  mo?e  of  tfte  faia  ^Ijips  ana  ©ooas  of  tlje 
['  Stares  General,  0?  aup  Of  tljeir  (atB  ^ubjects*  as 
•;  befiaes  tbe  fata  ^umbefo?e'mentioneafl)all  coun- 
•!  tertiail,  fattsfp,  ana  pap  all  f«c&  Cofls  ana 

c  4  ::  €mm 

io  Of  Letters  of  Marque  and  Reprizal.  Book  I.) 

^'  CljaCffCS  as  tlje  fatO  sir   Edmond   Turner,    dtia 
•'  George  Carew,  tMt  (£rCCUtO?0,   9linUnfaratO?g, 

''  0?  ateung,  as  afo^efaiD,  CEiaH  from  time  to  time 
''  mafee  i&?oof  to  fjaSe  msbucfen,  nnti  paiiJ  totcacoiai 
^'  tfte  equippino:,  manning:,  paping,  fliwiifljinij,  ana 
**  SirtnaHtno;  of  tfje  faia  ^Wpis,  fo  Itcenfeo  ano  an^f 
"  tljon^en  as  afo?efaiD,  bPtljigom:  fain  Commit 
^'  Con  to  be  cquippeD,  niannin,  furnifljeU,  ann  Die-; 

^'  tualletl,  bp  tlje  faiO  sir  Edmond  Turner,  anD  George 

"  Carew,  tljeit  eitecuto?^,  acmimftcato?^,  nno  ap 
"  lim^  as  afojefaio,  fo?  tije  f  urpofe  afojefaio* 
AND  OUR  WILL  anH  ^leaftite  is,  anu  me  Bo 
\ittz\sv  nqmce  ©ui:  SluBge  o?  SuBgeS  of  ©ur  Ijiglj 
Court  of  aomiraltp,  fo?  tije  tjcime  being,  anB  all 
qtfier  ©fficeris  of  tlje  aamiraltp,  anB  all  otijer 
our  JuBge  0?  SuBges,  ©fflcers,  Siginitterg,  anB 
S^ubiects  uiljatfoeaer,  to  be  aiotng  ano  aJTifttng  to 

tbe   faiB    Sir   Edmond   Turner,    anO  George  Carew, 

tbefr  <erec«to?s,  9Bmtnifirato?s,  anB  afCgns  as 
afo?eraiB,  in  ail  points  in  tbe  Due  dEjrecutton  of 
tljis  Our  Eopal  Commifiion,  anB  to  p?oceeB  to 
9BfuBications,  anB  aBjuBge  all  J^ljips,  ^erctjan- 
tiijes,  ironies  anB  ©ooBS  bp  (Hirtue  tljereof  to  be 
tfikzn,  acco^Bing  to  our  ^rincelp  3intention,  Ijere^ 
bp  fignifieo  ana  wprefleB,  ano  tts  tafee  Care  tbat 
tftis  S)ur  Eopai  Commiffion  to  be  Bulp  erecutcB, 
ano  faaoutablp  fnterpieteB  ana  conRruea  in  all  re- 
fperts,  to  tlje  ^Benefit  ana  bell  aauantage  of  t&e 

faia  Sir  Edmond  Turner  auB  George  Carew,  t&Ctf  ^Xt- 

cut0?s,  atiminiflratc?s,  ana  aifigns>  as  afo^efata* 
IN  WITNESS  Mjereof,  mz  ijalje  cafca  toele  Dur 
Letters  to  be  maae  patents*   JKHitnefs  SDurfeir  at 

Weftminfter,  tbe  ipch  ©ap  Of  May,  lU  tfiC  SeBeU^^ 

teentD  fear  of  ©ur  Eeign, 

* .    -        ■       - 


XVI.  It  is  not  the  place  of  any  Man's  Nativity^  but  his 
Domicil;  not  of  his  Origination  but  of  his  Habitation^  that 
jfubjedls  him  to  Reprize :  The  Law  doth  not  confider  fo 
much  where  he  was  born,  as  where  he  lives  ;  not  fo  much 
where  he  came  into  the  World,  as  where  he  improves 
the  World. 


chap.ii.  0f  %ttttt&of^^t(\mmiiMtpmai.       4? 

If  therefore  Letters  of  Reprizal  fhould  be  awarded 
aaainft  the  Subjeds  of  the  Duke  of  Florence,  and  a  Na- 
me  of  Florence,  (but  denizened  or  naturalized  in  England) 
Ihould  have  a  Ship  in  a  Voyage  for  Leghorn,  if  a  Caption 
ihould  be  made,  the  fame  is  not  lawful,  nor  can  the  fame 
be  made  Prize.  Yet  by  the  Laws  of  England,  a  natural 
born  Subjea  cannot  diveft  himfelf  of  his  Allegiance  ;  tho' 
he  happens  to  be  com.morant  in  the  Enemy's  Country. 

XVII.  It  doth  not  any  where  appear,  that  Reprizals 
can  be  granted  on  Misfortunes  happening  to  Perfons  or 
their  Goods,  refiding  or  being  in  Foreign  parts  in  time  of 
War  there  ♦,  for  if  any  Misfortune  happens,  or  is  occafi- 
oned  to  their  Effeds,  or  to  their  Perfons,  then  they  muft 
be  contented  to  fit  down  under  the  Lofs ;  it  being  their 
own  fault,  they  would  not  fly  or  relinquifti  the  place,^ 
when  they  forefaw  the  Country  was  fubjedt  to  the  fpoil  ot 
the  Soldiers,  and  devaftation  of  the  Conqueror. 

The  Fadions  of  the  Guelfs  and  Gibellins  in  Florence, 
warring  againft  each  other.  The  Guelfs  obtaining  the  Vic- 
tory, and  thrufting  the  Gibellins  out'of  it,  after  they  had 
taken  the  City,    Bomum  cujufdam  Hugonis  de  Papi  in  hoc  j^^^j^  ^-^^^^ 
Regno  Anglic  demorantis  diruerunt,     and  plundered   his  i?^/.  53.  (in 
Goods  therein,  ([ui  Hugo  fupplicavit  Domino  Regi,  ut  Inderhefaur.  Re- 
It  ali  Merc  at  ores  (of  that  Fadion  and  City  then  ^^^^^g-f/^',ff,'^Z 
land)  emendas  hie  fihi  facer ent  -,  upon  which  ^^(^j^i^^^^^^f^  RegeF/ounti^, 
fuit,   quod  dim  Mercatores  di^o  Hugoni  fatisfaciant^  pro 
damnis  fufceptis,    ^  deflru5lione  domus  fu£  :    upon  which  a  n^g  Rot  Fa/ 
Writ  of  Error  was  brought,    and  the  Judgment  was  re-ro«z>28  £.3. 
verfed  in  thefe  words  ;    ^bd  non  efl  confuetudo  Anglic  de  ^°^;JJg^'^' 
aliqua  trmfgreffione  faUa  in  aliena  Regione,  tempore  Guerre,  Jy ^.^.j^^^ 

vel  alio  modo  confideratum  efl,  quod  iotus  proceffus  ^  Corke  in  Hi- 

ejus  effeffus  revocentur,  &c.  ^     berma.  ^ 

XVIII.  By  right  (for  fo  it  is  now  called  of  rtr\&mg  ji^^  fad/ne  tu 
like  for  like)  there  are  many  perfons  exempted^  and  ihoft  RegiumNm- 
^hofe  Perfons  are  fo  privileged,  have  alfo  proted ion  for  ^^«^^^^^^^^^^ 
their  Goods,  fome  by  the  Laws  of  Nations,  fome  ^  by  the  ^^'^^^j^j^f^/. 
Civil  Law,  others  by  the  Common  Law  \  among  which  Am-  tif^ue  meos. 
haffadors  by  the  Laws  of  Nations,    their  Retinue  andTheAmbaf- 
Goodsare  exempt,  coming  from  him  who  awarded  ^^^  ^^°"^fbdng 
Reprize,  the  Laws  of  Nations  not  only  provided  for  the  •jj^^J'jj'  by 
Dignity  of  him  that  fends,  but  likewife  the  fecure  going  the  Carthagi- 
and  coming-of  him  that  is  lent.  «^'^«^,  ^"^ 

..   -  ^    -       .  -  ]^Qj.  5r;>/tf's  Army 

42         jfiDfXeftct!SoE0parqueantiBcpn?aI*  Book  i. 

having  fur-  Nor  againfl  thofe  that  travel  for  Religion,  nor  on  Stu- 
^^^'^vf'T^A  ^^"^s,  Scholars,  or  their  Books  ;  nor  on  Women  or  ChiU 
f"the  CaT-^  ^^^"  ^y  ^^^  Civil  Law :  nor  thofe  that  travel  through  a 
thaginians.  Country,  flaying  but  a  little  while  ther^  *,  for  they  are 
was  demand-  only  fubjc(5l  to  the  Law  of  the  place, 
cd  what  gy  ^i^g  Canon  Law  Ecclefiaftical  Perfons  are  exprefsly 

STetotLm/xe^ipt  from  Reprizals  ^  .  ^     ,.  , 

anfwered,  A  JVlerchant  or  another  place  than  that  agamlt  which 

not  as  the  Reprizals  are  granted,  albeit  the  Fadlor  of  fuch  Goods 
Carthaginians  ^^^^  ^f  ^}^^^  place,  is  not  fubjcfl  to  Rcprizals. 
t\l\omans!  XIX.  Ships  driven  into  Port  by  dorm  or  fbrefs  of  wea- 
ther, have  an  exemption  from  the  Law  of  Reprizals,  ac- 
cording to  the  Jus  CGmmune^  but  by  the  Law  of  England 
otherwife,  unlefs  exprefsly  provided  for  in  the  Writ,  or 

But  if  fuch  Ship  flies  from  his  own  Country  to  avoid 
Confifcation,  or  fome  other  Fault,  and  is  driven  in  by 
ilrefs  of  Weather,  fhe  may  then  become  fubje6l  to  be 

But  it  is  not  lawful  to  make  feizure  in  any  Ports,  but 

in  his  v/ho  awarded  the  Reprizal,  or  his  againfl:  whom  thfe 

fame  iflfued  ;    for  the  Ports  of  other  Princes  or  States  the 

Peace  of  them  are  to  be  maintained. 

,      XX.  Ships  attacked  by  thofe  that  have  Letters  of  Re- 

J/to)Tmhino'' '9^'^'^^'>  ^"^  refufed  to  be  yielded  up,  may  be  aflaulted  and 

centium,  a^^A-cutrcd  ;  and  though  it  may  fall  out,  not  by  intention,  but 

talicaufaobli-]Qy  accidcnt,  that  fome  of  thofe  |hat  fo  refifl;,  may  hap- 

ratup  forte     ^^^  ^^  \^^  Q^jn^  yg|.  ^^  Fault  will  lie  at  their  own  Doors, 

^ILdaTiquos    ^^^  hindring  the  Execution  of  right,  and  that  which  the 
fvpulcs,  eo  ni'  Law  mofl:  juflily  approves  of. 

mirum  quod 

<rederent  uniculque  hominumjus  ^ita  plenum  ejfe  infe,  ^  ad  rem  puhlicam  potuijfe  tranj- 

Jerrif  quod  minime  ejje  prohabiUy  nee  fanEliori  Theologi/e  confentaneum.     Grotius  de   Jure 

/"      helli  iib.  3.  r.  2.  ^.^^And  feems  to  be  of  opinion  by  the  Law  of  Charity,  that  the 

Profecution  of  right  for  a  Man*s  Goods,  which  inevitably  muft  be  by  the  Life  of  Alaii, 

ought  to  be  omitted.     Lib.  2.  cap.  10.  Liv.Iib.z. 

XXI.  This  right  of  changing  of  Z)(?;«/«/^«  is  fo  odious, 
that  in  the  taking  of  Goods,  if  by  any  pofllbility  the  right 
Owners  may  have  Refl:itution,  the  fame  hath  been  done  ; 
and  though  a  larger  time  than  24  Hours  may  happen  be- 
tween the  capture  and  recapture,  and  fo  may  pernoBare 
with  the  Captor  5  yet  Refl:itution  may  be  made. 


ch  AP.ii.  fSDtHtttmot^avdutannnmmt      43 

If  a  Ship  be  Prize  or  not,  this  fliall  be  tried  in  the  Ad-  Prize  or  not 
miralty,  and  no  Prohibition  fhall  be  granted.     The  Cafe  P^^^^. j^^^^f 
was,  there  being  War  between  us  2ind  Denmark^  ^ -^^^^^"  rifdiaion,  " 
teer  of  Scotland  took  a  Ship  as  Prize  being  a  Danijh  Ship, 
and  Ihe  was  condemned  as  Prize  by  the  Admiralty  in 
Scolknd',  And  brought  her  upon  the  Land,  and  S.  Jibell'd 
in  the  Admiralty  of  Englajid-,  and  fuggeiled  that  fhe  was 
not  a  Danijh  but  a  Ship  of  London^  per  Curiam,  In  as  much 
that  the  matter  is  Prize  or  not   Prize  no  Prohibition. 
^ompfon  and  Smith  i  Sid.  320.  2  Keehle  158.  ^  176. 

One  who  had   Letters  of  Marque  in  the  late  Wars  a  Ship  taken 
with  the  Dutch,  took  an  Ojhnder  for  a  Dutch  Ship,  and  at  Sea  as  Prize 
brought  her  into  an  Haven,  and  libelled  againft  her  as  f^^^^  ^^  ^"^<1 
Prize,  and  the  Oftender  libelled  in  the  Admiralty  againft  ^^jj^^^^"^""^' 
the  Captor  for  damage  fuftained,  for  the  hurt  the  Ship 
fuftained  in  the  Port,  and  a  Prohibition  was  prayed,  for 
this  that  the  Suit  is  for  damage  done  in  the  Port,  for 
which  an  Action  lies  at  the  Common  Law  ;  but  the  Pro- 
hibition was  denied,  becaufe  the  Original  being  a  Caption  j^^Ty;^;^;?^^^^ 
at  Sea,  and  the  bringing  her  into  Port  in  order  to  have  ^^^^^^  againll 
her  condemned  as  Prize,  is  but  a  confequent  of  it,  not  ^^f^^^^»^  ^ 
only  the  Original,     but  alfo   the  confequences  Ihall  be^'^^* 
tried  there.     'Turner  and  Cary  cont.    Neele  i.    Lev.  243. 

1.  Sid.  ^6j.  2.  Keeble  360.  364.   r.  Vent.  173.  Radly  zud 
Delbow  con.  Egksfield  and   Whital  2.    Keehle   828.    and 

2.  Lev.  2^.  2.  Saun.  259. 

And  therefore  if  he,  who  hath  Letters  of  Marque  or  Barthol.  in 
Reprizal,    takes  the  Ships  and   Goods  of  that  ,Nation,  Leg- fi quid 
againft  whom  the  fame  are  awarded,  and  brings  the  fumQ^J^^^j^-^^^^l'' 
into  a  Neuter-Nation,  the  Owners  may  there  feize  her,  j„"^i^„  J,  ^^' 
or  there  the  Admiral  may  make  Reftitution  by  Law,  as  hojiihus,  c.  de 
well  of  the  Ship's  Goods  to  the  Owners,  as  the  Perfons  Capt.  Conji.  - 
captives  to  their  former  Liberty ;  for  that  the  fame  ought  ^^^''- Jo.  ///. 
firft  to  have  been  brought  infra  Prafidia  of  that  Prince  or  ]:o'nfu/ Marts 
State,  by  whofe  Subjedls  the  fame  was  taken.  '  287. 

And  with  this  agrees  the  Common  Law  \  for  a  Dunkirker  Trin.iyCar.l. 
having  taken  a  French  Veflel,    fold  the  fame  at  Weymouth,  in  B.  R. 
whither  it  had  been  driven  before  it  was  brought  infra  March  'Rep. 
fraftdia  Dom.  Regis  Hifp.  k  was  in  fuch  cafe  ruled,  that ''°*  ^.Jw/L 
if  a  Ship  be  taken  by  Piracy,  or  Letters  of  Marque  and  gainil  B^rdey 
Reprizal,  and  is  not  brought  infra  Rr^efidia  of  that  Prince  Res  qua  in. 
or  State,  by  whofe  Subje(5l  the  fame  was  taken,  the  fame  A^  Pra/tdia 

44  3©f  Utttmot^aVdUt  anb  Ecp^t?aL  Book  I. 

dnmfunt,  could  not  bccome  lawful  Prize,  nor  were- the  Owners  by 
|«^«|««»»  ah  fy(.|^  ^  Caption  divefted  of  their  Property. 
fatJl'Domi^  But  if  the  Caption  be  by  Ships  of  War,  the  Pro- 
numnon  wa/^perty  will  be  immediately  in  the  Captors,  and  never  di- 
runty  ex  G£«- veiled,  unlefs  afterwards  vi^  manu  ^  forti  it  be  in  Battle 
iiumjur.       regained. 

FUeSAci^.     XXII.  Upon  the  fharing  the  Spoil  of  the  captivated 
§.  6,  7,  8.     Ships,  regard  is  had  to  the  Ships  prefent,  not  the  Captors 
only  ;  (for  his  Reward  muft  be  the  Encouragement  of  his 
Prince,  like  the  Roman  Corona's^  of  which  there  were  va- 
rious,   according  to  the  Atchievement  of  the  Conqueror,) 
for  the  Profits  of  Prizes  are  to  be  equally  divided  amongft 
the  Ships  prefent,  and  not  folely  to  the  Captor  ;  therefore 
if  Letters  of  Reprizal  are  granted  to  two  Ships,  and  they 
happen  both  of  them  at  Sea  to  meet  a  Prize,  and  the  one 
attacks  and  enters  her,  by  means  of  which  fhe  becomes 
ahfolutely  the  Conqueror  ;    yet  the  other  hath  right  to  an 
equal  diftribution  with  the   Captor  both   in   Ship  and 
Goods,   although  he  did  nothing  in  the  Conqueft  :  the 
Mich.  '3,zEUz,rt2Son  is,  That  although  he  miffed  the  opportunity  of  taking 
Somers  and  Sir  qJ^  j^gjr^   y^t  the  prefence  of  his  Fejfel  armed  and  prepared  for 

C  L  ona  d  ^  -^^^^^^'  ^^  ^^^  ^^^^^  ^f  ^^^^^g->  became  a  Terror  to  the  Ship 
part  182.  '  that  was  fo  conquered.  And  by  the  Law  prefumed  7?«^ 
ejus^  that  the  other  Ship  would  not  or  could  not  be  fo 
taken,  which  Law  hath  pafled  the  current,  and  approba- 
tion of  the  Common  Law^  as  reafonable,  juft,  and  equita- 
ble, and  may  be  pretended  or  furmiftrd  to  entitle  the 
Party  Captor  to  the  making  Reftitution  of  a  Moiety  to 
his  Companion  then  prefent. 

XXIII.  But  fhould  happen,  that  thofe  to  whom 
Letters  of  Marque  are  granted,  fhould  inftead  of  taking 
the  Ships  and  Goods  of  that  Nation  againft  whom  the 

Rolls.  AlridgS^mt  were  awarded,  wilfully  take  or  fpoil  the  Goods  of 

fol.  530.        another  Nation  in  amity,  this  would  amount  to  a  down- 

Moor  T]6.      j.jg|^^  l^iraCP*    And  the  Perfons  offenders  would  for  fuch 

fault  create  a  Forfeiture  of  their  VefTel,    and  the  Owners 

muft  be  for  ever  concluded  by  the  fame,   notwithftanding 

fuch  Commiffion. 

XXIV.  But  that  muft  be  underftood  where  fuch  a  Cap- 
tion is  done  in  a  Pyratical  manner  ;  for  moft  certainly, 
if  Letters  of  Reprizal  are  granted  to  a  Man,  and  then  he 
devolves  the  power  to  another,  and  the  Party  to  whom 


44  ^f  ILtttmot^aVWt  anti  ECp^l?aL  Book  I. 

dumfunt,  could  not  bccome  lawful  Prize,  nor  wefethe  Owners  by 
TftLTocm  ^"^^  ^  Caption  divefted  of  their  Property. 
paL'!'Doml  ^^f  ^^  the  Caption  be  by  Ships  of  War,  the  Pro- 
tiumnon  muta-^tny  wiU  be  immediately  in  the  Captors,  and  never  di- 
runty  ex  Gf«- veiled,  unlefs  afterwards  i;/,  manu  Q  forti  it  be  in  Battle 
iiumjure,       regained. 

Vi^eGJ.c.i^,     XXII.  Upon  the  fharing  the  Spoil  of  the  captivated 
§.  6,  7,  8.     Ships,  regard  is  had  to  the  Ships  prefent,  not  the  Captors 
only  ;  (for  his  Reward  muft  be  the  Encouragement  of  his 
Prince,  like  the  Roman  Coronals ^  of  which  there  were  va- 
rious,   according  to  the  Atchievement  of  the  Conqueror,) 
for  the  Profits  of  Prizes  are  to  be  equally  divided  amongft 
the  Ships  prefent,  and  not  folely  to  the  Captor  ;  therefore 
if  Letters  of  Reprizal  are  granted  to  two  Ships,  and  they 
happen  both  of  them  at  Sea  to  meet  a  Prize,  and  the  one 
attacks  and  enters  her,  by  means  of  which  fhe  becomes 
ahfolutely  the  Conqueror  ;    yet  the  other  hath  right  to  an  • 
equal  diftribution  with  the   Captor  both   in   Ship  and 
Goods,   although  he  did  nothing  in  the  Conqueft  :  the 
M;V/^.  32j?//«.rcafon  is,  ^hat  although  he  miffed  the  opportunity  of  taking 
Somers  and  Sir  qj^  j^gjr^   yet  the  prefence  of  his  Veffel  armed  and  prepared  for 
Rtch_  Bui  ley  s  ^^f^ig    ^^  ^^^  ^^-^^^  ^f  f^kinz-,  became  a  Terror  to  the  Ship 

C.  Leonard  2.    ,/.  jajiit  ^ix." 

part  182.  that  was  Jo  conquered.  And  by  the  Law  prelumed  y/w^ 
ejus^  that  the  other  Ship  would  not  or  could  not  be  fo 
taken,  which  Law  hath  pafTed  the  current,  and  approba- 
tion of  the  Com?non  Law,  as  reafonable,  juft,  and  equita- 
ble, and  may  be  pretended  or  furmifcd  to  entitle  the 
Party  Captor  to  the  making  Reftitution  of  a  Moiety  to 
his  Companion  then  prefent. 

XXIII.  But  fhould  happen,  that  thofe  to  whom 
Letters  of  Marque  are  granted,  fhould  inflead  of  taking 
the  Ships  and  Goods  of  that  Nation  againft  whom  the 

Rolls.  Ahr'idg,ikmt  were  awarded,  wilfully  take  or  fpoil  the  Goods  of 

fol.  530.        another  Nation  in  amity,  this  would  amount  to  a  down- 

Moor  -j^e,      j,jg|^^  piracy*    And  the  Perfons  offenders  would  for  fuch 

fault  create  a  Forfeiture  of  their  Veffel,    and  the  Owners 

muft  be  for  ever  concluded  by  the  fame,   notwithftanding 

fuch  Commiffwn. 

XXIV.  But  that  muft  be  underftood  where  fuch  a  Cap- 
tion is  done  in  a  Pyratical  manner  ;  for  moft  certainly, 
if  Letters  of  Reprizal  are  granted  to  a  Man,  and  then  he 
devolves  the  power  to  another,  and  the  Party  to  whom 

;he  M%tttmotSldSivmt  ana  lSep?t?aL      as 

z  the  power  is  configned,  takes  the  Ship  and  Goods  of  ano- 
ther Nation  than  againfl  whom  the  fame  were  awarded, 
but  upon  a  violent  prefumption   that  he  made  a  right 
Caption,    for  that  he  found  the  Colours  of  feveral  Nati- 
ons in  the  Ship,  the  Mariners  of  feveral  Countries,  the 
Ship  of  the  Built  of  that  Country  againfl  whom  the  Let- 
ters of  Reprizal  were  awarded,  though  perhaps  upon  a 
Judicial  hearing  the  parties  are  reftored  to  their  Ship  and 
Goods,  yet  the  Captors  are  not  to  be  punifhed  Criminali- 
ier^  nor  the  Grantee  of  the  Letters  Patents  Civiliter  :  and'?''^'-4^-5-^» 
the  reafon  wherefore  it  was  no  injury  in  the  Captors  to^"  H  ^'  4- 
take,  did  arife  from  the  probable  caufe  which  will  ex-  *  ^' 
cufe  the  Captors  from  punifhment   (though  perhaps  it 
,will  not  from  anfwering  of  the  damage ;)  but  it  is  clear 
the  Grantees  are  ej^cufed  from  both,  unlefs  privy  to  the 
Caption  5  and  the  reafon  is  this,  for  the  Letters  Patents 
do  not  only  veil  the  debt   in  the  party,  but  do  likewife 
give  Power  to  the  Party  to  recover^  and  is  a  judicial  pro- 
,pefs  to  obtain  fatisfadlion,  vi^  manu  &  forii  from  theSub- 
je(5ls  of  that  Prince  or  State  againfl  whom  the  fame  are 
awarded :    So   then  it  will  be  no  more  than  if  the  Cre- 
ditor  deliver  procefs  to  the  Officer  to  take  his  Deb- 
tor, and  he  takes  a   vv'rong  Perfon  without  the  Know- 
ledge of  the   Creditor,    this    may    fubjedl    the   Officer 
to  anfwer  Damage  to  the  Party  taken,  but  not  the  Cre- 

XXV.  Therefore  Letters  of  Marque  or  Reprizal  if- 
fue  not  without  good  and  fufficient  Caution  firfl  given  for 
the  due  obfervance  thereof  according  to  Law ;  the  Tranf- 
greffion  of  which  creates  a  Forfeiture  of  the  fame. 

And  therefore  having  taken  a  Prize,  and  brought  the 
fame  infra  Prejidia^  the  Captor  muft  exhibit  all  the  Ship- 
papers,  and  captivated  Mariners  to  be  examined,  in  order 
to  adjudication,  till  when  Bulk  ought  not  to  be  broken 
without  CommiJJion,  nor  may  the  Captain  of  the  Captor 
fuffer  an  embezzlement  of  the  lading,  or  fell,  barter  or 
difpofe  of  any  part  without  Commijion  ;  for  the  King  hath  3  EHz.cap.  5. 
a  proportion  in  all  Prizes. 

Such  Goods  fo  brought  in  are  not  fubje6t  to  pay  Cu-  ^  2  Car.  ir. 
iloms.  J  r  J         ^^^jgj  ^jjg  ^^ 

XXVL  By  the  Law  of  iVia/Z^f/j,  ipfofa^o^  the  Domi*  ^' 

nion  of  the  things  taken  by  thofe  to  whom  Letters  of 


46        flDf  ttttm  of  aparrttic  anh  mtpri^ai  Book  l 

Marque  are  granted,  become  the  Captors,  till  the  Debt 
and  Cofts,  that  is,  the  original  Damag?  and  fubfequent 
charges  are  fatisfied  ;  which  being  done,  the  refidue  ought 
to  be  reftored  :  So  the  Venetians  ufed  their  equity,  having 
Greg,  lib,  9.  taken  the  Ships  of  Genoa ^  did  not  fpoil  any  of  the  lading, 
but  preferved  the  fame  very  carefully,  till  the  Debt  was 
paid  ;  which  done,  reftitution  was  made  of  the  things  en- 
tirely, without  diminution. 

XXVII.  When  for  the  fault  perhaps  of  a  few,  a  debt 
becomes  National^  by  reafon  of  which  the  Goods  of  the 
innocent  become  liable  (if  taken  for  fatisfadlion)  whether 
by  the  Law  of  England^  the  party  ought  to  have  Contri-. 
bution,  is  a  queftion  mod  certain  by  the  Common  Law ; 

///«.  N.  B.  where  more  are  bound  to  one  thing,  and  yet  one  is  put 

fol.  162.  O/^.  to  the  whole  Burden,  the  Party  may  have  procefs  called 

N.  Bre.  ^^Z' Contrihiitione facienda  for  his  Relief:  but  when  a  debt  be- 

176.  'comes  Univerfal  or  National,  it  feems  otherwife  :  For  if 

one  lends  my  Country  Money .^  I  will  not  call  myfelf  debtor^ 
'* Seneca  Benef. yet  I  will  pay  my  fhare* :  So  it  may  feem  equitable  by  the 
€ap.  19.         Laws  of  Charity,  though  not  compellable  by  the  Laws  of 

the  Land. 

XXVIII.  Yet  when  depredations  have  happened  to  Fo- 
reign Merchants,  and  complaint  hath  been  made,  the 
Kings  of  England  have  often  illued  forth  CommiiTions  to 
enquire  of  the  fame :  and  fo  it  was  done  upon  the  Peti- 
tion of  fome  Merchants  of  Genoa^  who  complained  againfl: 

Tat.  26  E,  3.  the  Inhabitants  of  the  Ille  of  Guernfey  for  a  depredation, 

pars.  I M.  16.  in  taking  away  and  detaining  their  Merchandize  and  Goods, 

^''•^°'  to  the  value  of  many  thoufands  of  Pounds,  out  of  a  Ship 

wrecked  by  temped  near  that  Ille,  by  which  the  Commif- 

fioners  were  empower'd  to  puniJJj  the  offenders^  and  to  make 

reftitution  and  fatisf action  for  the  damages. 

The  like  complaint  was  made  by  the  Merchants  of  the 

Duke  of  Britain^  of  certain  depredations  committed  by 

Tat  dtAn.t,^^  Subje6ls  of  the  King  of  England^    who  ifTued  forth 

>/.  5.  pan  I. the  like  Commiffion,  and  to  give  them  reparation  and 

M.  9.  Dorfo,  damages  for  the  fame  •,    fo  that  if  the  Subjeds  of  the 

ferfonis  ^arrell  ^^"^  ^^  England  have  had  their  Goods  taken  by  way  of 

^5*  (apiend.     Reprize  for  the  fatisfa61:ion  of  fuch  debt  or  damage,  they 

may  have  the  Benefit  of  the  like  Commifiions  to  lick  them- 

felves  whole  out  of  the  Eilates  of  the  Offenders.    . 



CHAP.     III. 

Of  PrivateerSt  ^whether  alloixi- 
able  by  the  Laivs  of  Nature. 

Of  permiffton   of  fuch    by    the 
Laivs  of  Nations. 
[ .  The  Occajion  of  their  frji  In- 
(li  tut  ion. 

' ."  Whether  it  he  lamufulto  under- 
take fuch  an  Employment, 

Of  CommiJ/ions  general  to  enda- 
mage an  Enemy. 

.  Of  CommiJJions  fpecial  and  to 
Privateers,  and  the  Immunities 
they  claim  by  the  fame. 

I.  They  are  not  to  ^violate  the 
l^anv  cf  Nations.  A  great  Cafe 
m  that  Head. 

II.  Of  the  Care  that  is  obliging 
on  the  iffuing  forth  fuch  Com- 
mijjions,  in  referente  to  their  Re- 
lulatiuHy  and  efpecially  in  the  lajl 

^Treaty  Marine,  hetnveen  England 
atid  Holland. 

IX.  Of  Goods  fuhjeil  to  Prize y  ho<vi 
confidered  in  reference  to  adjudica- 
tion  general. 

X.  Of  the  Goods  confidered  in  refe^ 
rence  to  adjudication,  on  Occaflons 

XI.  Of  the  Lading  made  Prize, 
^whether  it  draivs  in  a  Forfeiture 
of  the  Veffely  and  njohere  other<voife. 

XIX.  Whether  Ships  refufing  to  yield 
up  to  fuch,  life  is  engaged. 

Xlir.  Privateers  ijuhere  fuhje£i  ta 
Pu'fiijhmenty  and  their  Anions 
vjhere  Occajton  a  Forfeiture  of 
their   Veffel. 

XIV.  Of  Things  notfuhje^  tofpoil. 

XV.  Conjiderations  general  on  Pri" 

NAturally  every  one  may  vindicate  his  own  Right, 
therefore  were  our  Hands  given  us ;  but  to  pro- 
another  in  what  we  can,  is  not  only  lawful,  but  com- 
=ndable,  fince  nothing  is  more  ferviceable  to  Man  than 
an.  Now  there  are  divers  obligations  between  Men 
lich  engage  them  to  mutual  Aid,  for  Kinfmen  affem- 
i  and  bring  help,  and  Neighbours  are  called  upon,  and 
low  Citizens  ;  for  it  behoves  every  one,  either  to  take 
rms  for  himfelf,  if  he  hath  received  Injury,  or  for  his 
ndred,  or  for  his  Benefadtors,  or  to  help  his  Fellows, 
they  be  wronged.  And  Solon  taught,  ^hat  Common- 
alths  would  he  happy  wherein  every  one  would  think  another^ s 
uries  to  he  his  own.  But  when  War  is  denounced,  it 
itters  not  what  obligations  are  wanting,  it  is  enough  the 
ition  is  injured  in  general-,  for  in  that  every  individual  is 
onged,  and  all  participate  in  the  Indignities  and  publick 
images  of  his  Country  ;  to  revenge  or  prevent  which,  is 
e  Duty  of  every  Member  of  the  fame, 

II.  Sines 


deServ. export. 
quis  in  fervi  in- 
tern D.  defur. 
Leg.  prohib.  c. 
de  "jureFifci, 

ut  vim.  D  de 
Juji.  &  Jure 
«.  7.  b*  8. 

46        fiDf  %tttm  of  ^avtim  anh  Mtpri^ai  Boojc 

Marque  are  granted,  become  the  Captors,  till  the  D( 
and  Cofts,  that  is,  the  original  Darhage  and  fubfequc 
charges  are  fatisfied  ;  which  being  done,  the  refidueouc 
to  be  reflored  :  So  the  Venetians  ufed  their  equity,  havi  | 
Greg.  lib.  9.  taken  the  Ships  of  Genoa^  did  not  fpoii  any  of  the  ladir 
but  preferved  the  fame  very  carefully,  till  the  Debt  v 
paid  ;  which  done,  reftitution  was  made  of  the  things  e 
tirely,  without  diminution. 

XXVII.  When  for  the  fault  perhaps  of  a  few,  a  de 
becomes  National^  by  reafon  of  which  the  Goods  of  t 
innocent  become  liable  (if  taken  for  fatisfadlion)  wheth 
by  the  Law  of  England.,  the  party  ought  to  have  Conti' 
bution,  is  a  queflion  moft  certain  by  the  Common  Laiz 

Tit%,  N.  5.  where  more  are  bound  to  one  thing,  and  yet  one  is  p 

fo/.  162.  O// to  the  whole  Burden,  the  Party  may  have  procefs  call< 

JV.  B^.  ^^Z- Contrikitione facienda  for  his  Relief:  but  when  a  debt  b 

176.  'comes  Univerfal  or  National,  it  feems  otherwife  :  For 

one  lends  my  Country  Money.,  I  will  not  call  myfelf  debto 
"^  Seneca  Benef. yet  I  will  fay  my  Jhare  * :  So  it  may  feem  equitable  by  tl 
€/fp.  19.         Laws  of  Charity,  though  not  compellable  by  the  Laws  • 

the  Land. 

XXVIII.  Yet  when  depredations  have  happened  to  F( 
reign  Merchants,  and  complaint  hath  been  made,  tl 
Kings  of  England  have  often  illued  forth  Commiflions  t 
enquire  of  the  fame :  and  fo  it  was  done  upon  the  Pet 
tion  of  fome  Merchants  of  Genoa.,  who  complained  again 

Tat.  26  E.  5.  the  Inhabitants  of  the  lile  of  Guernfey  for  a  depredatior 

pan.  I  M.  16.  in  taking  away  and  detaining  their  Merchandize  and  Good: 

^'^''*  to  the  value  of  many  thoufands  of  Pounds,  out  of  a  Shi 

wrecked  by  temped  near  that  Ille,  by  which  the  Commii 

fioners  were  empowered  to  puniJJj  the  offenders^  and  to  mak 

reftitution  and  fatisfatlion  for  the  damages. 

The  like  complaint  was  made  by  the  Merchants  of  th 

Duke  of  Britain^  of  certain  depredations  committed  b 

Pat  dej^n.e.^^^  Subjcds  of  the  King  of  England.,    who  ifTued  fort: 

//.  5.  pats  I. the  like  Commiflion,  and  to  give  them  reparation  ani 

M.  9.  Dorfo,  damages  for  the  fame  •,    fo  that  if  the  Subjeds  of  th 

ferfonUarreft  ^^"B  ^^  England  have  had  their  Goods  taken  by  way  c 

•^s*  ((^piend.     Reprize  for  the  fatisfadion  of  fuch  debt  or  damage,  the; 

may  have  the  Benefit  of  the  like  Commiflions  to  lick  them 

fclves  whole  out  of  the  Eflates  of  the  Offenders. 

C  H  A  I 


CHAP.     III. 

I.  Of  Privateers,  ^whether  allonv- 
able  hy  the  Lawns  of  Nature. 

II.  Of  fermiffion  of  fuch  hy  the 
Laivs  of  Nations. 

III.  Jhe  Occajion  of  their  frji  In- 

IV.'  Whether  it  he  lanvful  to  under- 
take fuch  an  Employment. 

V.  Of  Commijfions  general  to  enda- 
mage an  Enemy. 

VI.  Of  Commiffions  fpecial  and  to 
Privateers,  and  the  Immunities 
they  claim  by  the  fame. 

VII.  ^hey  are  not  to  violate  the 
Lanjo  of  Nations.  A  great  Cafe 
on  that  Head. 

VIII.  Of  the  Care  that  is  obliging 
on  the  iffuing  forth  fuch  Com- 
tnijjionsy  in  reference  to  their  Re- 
gu/atian,  and  efpecially  in  the  lajl 

Treaty  Marine,  hetixjeen  England 
afid  Holland. 

IX.  Of  Goods  fuhje Si  to  Prize,  honx} 
conjidered  in  reference  to  adjudica- 
tion general. 

X.  Of  the  Goods  conftdered  in  refe^ 
rence  to  adjudication,  on  Occafions 

XI.  Of  the  Lading  made  Prize, 
'whether  it  dravos  in  a  Forfeiture 
of  the  Feffely  and  nvhere  othervuife. 

XII.  Whether  Ships  refuftng  to  yield 
up  to  fuch,  life  is  engaged. 

XIII.  Privateers  vohere  fubjeSi  ta 
Punijhment,  and  their  Adions 
vihere  Occajton  a  Forfeiture  of 
their   Veffel. 

XIV.  Of  things  not  fuhjeB  to  fpoil. 

XV.  Conjiderations  general  Ofi  Pri' 


NAturally  every  one  may  vindicate  his  own  Right, 
therefore  were  our  Hands  given  us ;  but  to  pro- 
fit another  in  what  we  can,  is  not  only  lawful,  but  com- 
mendable, fmce  nothing  is  more  ferviceable  to  Man  than 
Man.  Now  there  are  divers  obligations  between  Men 
which  engage  them  to  mutual  Aid,  for  Kinfmen  afifem- 
ble  and  bring  help,  and  Neighbours  are  called  upon,  and 
fellow  Citizens  *,  for  it  behoves  every  one,  either  to  take 
Arms  for  himfelf,  if  he  hath  received  Injury,  or  for  his 
Kindred,  or  for  his  Benefadors,  or  to  help  his  Fellows, 
if  they  be  wronged.  And  Solon  taught,  nat  Common- 
wealths would  he  happy  wherein  every  one  would  think  another'* s 
injuries  to  he  his  own.  But  when  War  is  denounced,  it 
matters  not  what  obligations  are  wanting,  it  is  enough  the 
Nation  is  injured  in  general ;  for  in  that  every  individual  is 
"Wronged,  and  all  participate  in  the  Indignities  and  publick 
Damages  of  his  Country  ;  to  revenge  or  prevent  which,  is 
the  Duty  of  every  Member  of  the  fame. 

II.  Since 

Leg.  fer'vus  .T) , 

deServ. export. 
quis  infervitu- 
tern  D.  defur. 
Leg*  prohib.  c, 
de  fure  Fifci, 

ut  vim.  D  de 
Jtiji.  &  Jure 
n,  7.  ^  8. 

4?  fiOf  Plitatttt^  0?  CaperjS*         Book  t. 

II.  Since  therefore  it  is  not  againft  the  Law  of  Nature, 
to  fpoil  him  whom  it  />  lawful  to  kill^  no  wonder  that  the 
Laws  of  Nations  permitted  the  Goods  and  Ships  of  Ene- 

CiceroOjffic.'^.mxtsX.Q  be  fpoiled,  when  it  fuffered  their  Perfons  to  be 

III.  The  approbation  of  which  in  the  Wars  of  later 
The  Son  of  -^g^^'  ^"^^^^  given  occafion  to  Princes  to  iflue  forth  Com- 
Cato  Cenfori-  miflions  to  endamage  the  Enem.y  in  their  Commerce,  and 
nus  having  to  prevent  fuch  Supplies  as  might  flrengthen  or  lengthen 
fervedasapri-Qyi-  ^^r,  to  perfons  to  whoni  the  prize  or  caption  be- 
pay  under^  come  abfolutely  the  Captors,  and  that  to  prevent  the 
Pempilius,  the  fpare  of  Ships  of  Force  to  be  abfent  from  their  refpedlivc 
Legion  being  Sqiudrons  or  Fleets. 

disbanded,  the     gy  j-j^^fg  ^f  Holland  they  were  terrlied  Capers^  by  the 

wa""fefolved  ^P^^^^^^  t^^y  had  their  denomination  from  their  refpe- 
toremainwith<Sive  parts,  as  Oflenders^  Dunkirkers^  and  the  like,  in  Eng- 
the  Army,  land  call'd  Privateers ;  how  far  the  Anions  of  thofe,  as 
tho' biit  a  Vo- jj^  relation,  to  the  attacking  and  killing  of  the  Enemy,  or 

wrotrto  PoL^  ^P^^^^"§  ^^  ^^^^^  Ships  and  Goods  are  lawful,  not  being 
plius  the  Ge- commanded  nor  hired  thereto,  may  be  a  queftion. 

neral,  that  he 

fhould  give  him  an  Oath  the  fecond  time,  giving  this  Reafon,  ^ia  priore  atni/foyjun 
cum  hojiibui  fugnare  non -poterat :  Ckero  fets  down  the  very  Words  of  Cato  to  his  SoD, 
whereby  he  admonifheth  him  not  to  enter  into  Battle  j  Avy»^  enimjus  eje  qui  miles  m 
fit  pugnare  cum  hojie.     Cic.  Offic.  i  - 

IV.  By  the  LaWs  of  Nations  (as  hath  been  faid)  it  is 
lawful  for  every  Subjedl  of  that  Nation  in  War  to  feize 
upon  the  Enemy's  Goods  and  Ships,  as  alfo  to  kill  themj 
for  they  are,  after  War  denouncM  by  Law,  look'd  upon 
as  of  no  account ;  and  if  refpe6l  be  had  to  natural  and  in- 
ternal Right,  it  feems  granted  to  every  one  in  a  jufl  War 
to  do  thofe  Things,  which  he  is  confident  within  the  juit 
meafure  of  warring,  to  be  advantageous  to  the  innocent 
party  :  but  though  there  may  be  fuch  authority  given^  yet 
what  title  can  they  claim  or  appropriate  to  themfelves  of 
the  Ships  or  Goods  of  Enemies,  (for  furely  there  is  no- 
thing owing  to  fuch,  nor  are  they  lawfully  called  to  the 
fame)  unlefs  they  can  fhrowd  themfelves  undef  the  PrOtd- 
dion  of  this,  that  what  they  do^  is  only  to  exa6l  pdnifh- 
ment  from  the  Enemy  by  the  common  right  of  men. 

V.  Commiffions  to  kill  or  fpoil  the  Enemy  ^te  in  tvVO 
refpeds,  either  general  or  fpecial :    General  as  ■  in  a  tu- 
mult j 

Chap.  III.      M PlihUtUVS  0?  €aptrS.  49 

rnult ;  among  the  Romans  the  Confitl  faicl,  IVhofoever  would 
have  the  Commonwealth  fafe^  let  him  follow  7ne  -,  and  to  all 
particular  fubjecls  is  fometimes  granted  a  Right  of  killing 
in  felf-defence,  when  it  is  publickly  expedient,  as  on  a 
fudden  occafion,  and  the  like. 

VI.  Special  Commiffions  are  fuch  as  at-e  granted  to 
thofe  that  take  Pay,  and  are  under  Orders  *,  the  not  obey- i^<?^*  Deferto- 
ing  of  which  may  be  punilhed  with  Dc^ath,    though  the 

rem.  D.  de  r& 

a6l  fucceeds  well. 

Others  to  repair  a  particular  damage  by  way  h^  He-C.^ando^ 
prize^  the  original  damage  being  turned  into  a  National  ^-^^^J'^^^"^" 
debt,  but  that  fatisfied,  the  other  determines  :  or  elfe  to  j_  ^  2*. 
thofe  who  receive  no  pay,  but  go  to  Wat*  at  their  own 
charge  ;  and  that  which  is  more,  adminifter  at  their  own 
cells  a  part  of  a  War,  by  providing  Ships  of  Force,  and 
all  other  military  provifions  to  endamage  the  Enemy  or 
their  Confederates,  the  which  are  termied  Privateers^  &c. 
as  above,  to  v/hom  inftead  of  pay  is  granted  leave  to  keep 
what  they  can  take  from  the  Enemy  ;  and  though  fuch 
Licence  is  granted   them,  yet  may  they  not  convert  of 
their  own  Heads  to  their  private  ufe  thofe  Prizes,  before 
the  fame  have  been  by  Law  adjudged  lawful  to  the  Cap- 
tors, and  the  Admiral  had  his  Ihare. 

VII.  Nor  may  fuch  Privateers  attempt  ^ny  thing  againfl: 
the  Laws  of  Nations,  as  to  aflault  or  endamage  an  Enemy 
in  the  Port  or  Haven,  under  the  protedion  of  any  Prince 
or  Republick,  be  he  Friend,  Ally,  or  Neuter,  for  the 
peace  of  fuch  places  mull  be  kept  inviolably. 

Sir  Kenelm  Dighy  having  obtained  a  Commifllon  againd 
the  French^  being  in  the  Straights^  \Vas  every  where 
honoured  as  a  Cavalier  whom  the  Khig  of  Great- Britain 
favoured  -,  in  his  Voyage  he  took  fome  Prizes,  and  com- 
ing to  Algier  redeemed  feveral  Captives,  W'hom  he  took 
aboard,  and  placed  in  the  feveral  Vetfels  he  had  made 
prize  of  :  the  which  he  fo  effecled,  that  in  a  (hort  time 
he  became  Illufiriffano  of  fix  Ships  of  War  *,  coming  to 
Cape  Congare^  ten  leagues  from  Scanderoon^  and  having 
fent  a  Boat  to  defcry  the  road,  word  being  brought  that 
there  v/ere  in  the  road  two  Venetian  GalealTes,  with  two 
other  Galleons,  tv/o  Engliflj  Ships,  and  feveral  French 
Ships,  Sir  Kenelm  being  fatisfied  of  the  Prize,  refolved 
to  attack  them  the  next  morning,  although  the  Admiral 

D  of 

S(3  jSDf  P^ttiatCCrgi  02  CapetjS*  Book  I, 

of  the  Venetians  had  declared  himfclf  Protedtor  of  the 
Frejicb^  and  that  he  would  deflroy  all  the  Englifi  Ships 
of  War  that  he  (hould  meet,  either  in  that  Repuilkk's  or 
Grand  Signior's   Seas.     Sir  Kenelm  notwithftanding  refol- 
ved  to  engage  them,  and  accordingly  bore  up  to  them,  and^^ 
the  Venetian  General  weigh'd  Anchor  to  meet  him  •,    Sicr 
This  matter    Kenelm  bdovc  he  fired,  knt  a  Settee  to  inform  the  Vene-^ 
was  highly     tian  of  his  Quality,  and  of  his  CommifTion,  being  only  to 
•dtbateaat  ^^^ endeavour  to  make  prize  cf  the  French^  and  giving  him  all, 
Board  on  the  ^^^^  affurance  pofTible  of  his  fricndfhip  and  refped  to  the 
complaint  of  Rcpublick  *,  but  before  tht  Settee  was  anfwered,  the  en^j 
lan^y  then     gagement  was  begun  by  the  Engltjh,  French^  and  Venetian.^ 
Amb^iiTador    -pfj^  Adion  of  Sir  Kenelm  Bigby  was  queflioned  by  the, 
pii'bli At  lt«- "^^^^  •,  for  that  Hollility  had  been  committed  by  th^Eng- 
don.  Anno      lift)  in  the  Grand  Seignior's  Road,  and  thereupon  the  B^'a 
1629.  Fide    of  Aleppo  and  Cady  of  Scanderoon  made  an  Avania  or  Em- 
Biji.  Republic.  i^y.^Qg  Q^  i-j^e  Englijh  Merchants,  till  reparation  was  made, 
ene  .Jo  .170.  ^^^  ^^^^  breaking  the  Peace  of  the  Port. 

VIII.  In  the  granting  of  fuch  private  CommifTions  there 
is  always  great  care  to  be  had  and  taken  by  caution,  to 
preferve  the  Leagues  of  our  Allies,  Neuters  and  Friends,' 
according  to  their  various  and  feveral  Treaties ;  and  there-  • 
fore  at  this  day  by  the  late  Treaty  between  His  Majefty 
and  the  States  of  Holland  at  London^  before  any  Privateer 
or  Caper  can  receive  Commiflion,  the  Commander  is  ob- 
liged to  enter  before  a  competent  Judge,  good  and  fuffi- 
cient  fecurity  by  able  and  refponfible  Men,  who  have  no 
part  or  intereft  in  fuch  Ship,  in  1500  /.  Sterlings  or  15,500 
Gilders  ;  and  when  they  have  above  an  hundred  and  fifty 

treaty  Mar ine.yitn^  then  In  3000/.  or  33000  GilderSy  that  they  will 
ai  land.  De-  g^yg  f^]]  fafisfaSion  for  any  damage  or  injuries,  which 
iTthe'com^  they  fhall  commit  in  their  courfes  at  Sea,  contrary  to  that 
iniffion  muft  Treaty,  or  any  other  Treaty  made  between  His  Majefty 
always  be  and  that  State,  and  upon  pain  of  Revocation  and  Annullity 
mentioned  of  their  CommifTions  ^  and  for  anfwering  of  fuch  damage 
have  eleven     ^f  injuries,  as  they  fhall  do,  the  Ship  is  made  liable. 

fuch  fecurity. 

There  is  a  Frovifion  to  the  like  EiFefl  between  us  and  the  French  on  the  lafl  Peace. 

IX.  If  a  Suit  be  commenced  between  the  Captor  of  a 
Prize  and  the  Claimer,  and  there  is  a  Sentence  or  a  Decree 
given  for  the  party  reclaiming  •,  fuch  Sentence  or  Decree 


c  H  A  p.  lit.    m  Wiumts  01  iapm^  i  i 

(upon  fecurity  given)  fliall  be  put  in  execution,  notwith- ^ri.  13. 
{landing  the  Appeal  made  by  him  that  took  the  Prize, 
which  Ihall  not  be  oblerved  in  cafe  the  Sentence  fhall  be  Thefe Articles 
given  againft  the  Claimers  j    if  torture,  cruelty,  or  bar-  for  their  ex^ 
barous  ufe  happens  after  a  Caption,  to  be  done  to  the  ^^^^J^ncy  are  fit 
Perfons  taken  in  the  Prize,  the  fame  fhall  ipfo  fa^o  (^i^'l'l^.o^il^th^ 
IIJ  charge  fuch  a  Prize,  akhough  fhe  was  Jawfiil,  and  the  Nations  of  ' 
Captains  Ihall  lofe  their  CommifTions^  and  both  they  and  Euupe. 
the  Offenders  be  fubjedled  to  punifhment.  ^^^'  H- 

X.  Such  forts  of  Inftruments  having  made  a  caption  o^inhopumeffk 
Ships  bound  for  an  Enemy  from  Nations  Neuter,  or  mpartibus,  qui 
amity  with  both  the  warring  States  ;  the  lading,  in  order '^'^^^^'^^ ^^7 
to  be  made  Prize  is  reduced  to  thefe  three  feveral  heads,    ^^^^^nifiri/ 

Firfi:,  Thofe  Goods  that  are  fit  to  be  ufed  in  War,  Coiifulat,  Ma^ 
under  which  are  included  Powder,  Shot,  Guns,  Pikes,  ris  editus  efi 
Swords,  and  all  other  inftruments  and  provifions  of  Ar-  lingua  Italica, 
mature  fit  to  be  ufed  in  the  Field  or  at  Sea.  %m'Z7itllf 

The  fecond,  are  thofe  things  that  may  be  ufed  in  time-^^^^^^  ^mpera/o'- 
of  War  and  out  of  War,  as  Money,  Corn,  Victuals,  rum  Gr^d^, 
Ships,  and  the  like.  i^c.cujusUbti 

And  the  laft,  are  thofe  Goods   that  are  only  fit  for^^^-  ^7^» 
luxury  and  pleafure. 

XL  The  firft  are  accounted  Prize  without  controverfy  » 
He  is  to  be  accounted  an  Enemy  that  fupplies  an  Enemy 
with  things  necejjary  for  the  JVar, 

The  fecond  is  to  be  governed  according  to  the  (late  and  ^^^^^^^^^«^- 
condition  of  the  war  ;  for  if  a  Prince  cannot  well  defend  fQ^^th  Article 
himfelf,  or  endamage  the  Enemy,  without  intercepting  of  the  Treat/ 
of  fuch  things,  neceility  will  then  give  a  right  to  the  con-atZ,o«^  1674* 

demnation.     And  fo  Queen  Elizabeth  did  the  ^^^>^^'^"'^  th°[^j^a''°be 
Fleet  taken,  laden  with  Corn  for  Lisbon^  upon  confidera-  ^[^^  ^^^  of 
tion  of  the  (late  of  the  War,  the  fame  became  prize.         War  as  in 

War  (except 
Ships)  may  not  upon  any  account  be  called  prohibited^  nor  fubjefl  to  a  condemnation^^ 
except  carried  to  places  befieged.  Art.  4.  vSee  John  Meurjtus  h\s  Danip  Hiftory  con- 
cerning the  prohibiting  of  Goods  by  thofe  Northern  States.      Vide  pojha,  the  Grand 
Prize  condemned  by  c£_Elizaheth  in  tit.  Guftoms,  and  'uide  tit.  Ships  of  War,  §.  24. 

The  laft  become  frecj  and  (as  we  have  before  mention- 
fed),  according  to  that  of  Seneca  ;  /  will  not  help  him  to 
Money  to  pay  his  Guards  ;  but  if  he  fhall  defire  Marbles  and 
Robes^  fuch  things  hurt  not  others^  only  they  rnnifler  to  his 
^uyitcry  :   Soldiers  and  Arms  t  zvilt  not  fupply  him  with  ♦,  // 

D  5  he 

52  £Df  PlMtttt^  01  €aptVS*         Book  I. 

he  Poall feek  for  Players  and  recreations  to  [often  hisfiercenefs^ 
I  will  gladly  offer  to  him  :    Ships  of  War  I  would  not  fend' 
him^  hut  fiich  as  are  for  pie af are  and  ojlentation  of  Princes 
fportlng  in  the  Sea,  I  zvill  not  deny. 
And  Perfons  •     XII.    If  a   Privateer  take   a  Ship  laden  wholly  with 
fo  attempting  counterband  Goods,  both  Ships  and  Goods  may  be  fub- 

to  relieve  an    .    ^    ,  ,  .       '  .  -t  •' 

Enemy  may  jected,  and  made  prize. 

in  fome  cafes 

be  punifhed;  bat  if  the  fame  be  done  by  neceffity  of  obedience,  though  the  parties  are 
much  to  be  blamed,  they  yet  are  not  to  be  punifhed  ;  and  fo  it  was  with  tiiofe  which 
relieved  Sir  John  Oldcajile  with  provifions,  who  being  taken,  were  difcharged. 

But  if  part  be  prohibited  Goods,  and  the  other  part  is 
not  prohibited,  but  fuch  as  according  to  the  neceffity  of 
the  Warfhall  be  fo  deemed,  the  fame  may  draw  a  confe- 
By  the  feventhquential  condemnation  of  Ships,  as  well  as  lading. 
Article  in  the  If  part  of  the  lading  is  prohibited,  and  the  other  part 
"Treaty ^tLon-  j^  nierely  luxurious  and  for  pleafure,  only  the  Goods  pro- 
Skipper  will  hibited  become  prize,  and  the  Ships  and  the  remainder 
deliver  out  the  become  free,  and  not  fubjeft  to  infection. 


Goods,  the  Ship  may  proceed  with  the  reft  in  their  Voyage  or  Courfe,  ss  they  pleafe, 

and  the  Ship  fhall  not  be  brought  into  Port. 

XIII.  If  fuch  Ships  fliall  be  attacked  in  order  to  an 
Nee  reus  ejl  examination,  and  fliall  refufe,  they  may  be  alfaulted,  as 
morth  aliefice,  a  houfe  fuppos'd  to  have  Thieves  or  Pirates  in  it,  which 
inqmt  Augu-  j-efufes  to  yield  up  their  perfons,  may  be  broken  up  by 
t^fjii^mt^ ^^^  Officer,  and  the  perfons  refifters  may  be  flain. 

rorum  amhi- 

turn  circumduxit :  Ji  aliquls  ex  ipforum  ufu  per  cnjfus  inter  eat.  PubL  Epiji.  154. 

XIV.  But  if  any  of  thefe  Privateers  wilfully  commit 
,                  any  fpoil,  depredations,  or  any  other  injuries,  either  on 

the  Ships  of  our  Friends  or  Neuters,  or  on  the  Ships  or 
Z,?7. 5 .  fl^^  iV«- Goods  of  our  own  Subjects,  they  will,  notwithflanding 
tmoul.C.lib.'^.  ^Y^Qy  2LXt  not  in  pay,  be  fubjedled  in  fome  cafes  to  Death 
hiB  'r  '^  ^^^  other  puniiliments,  according  to  the  demerits  of 
Rolls  Abr'idg.  their  crimes,  and  perhaps  may  fubjed  their  Veflel  to  For- 
/.  530.  feiture. 

And  though  by  the  Law  of  Nature  the  Goods  of  Ene- 
mies are  to  be  fpoiled  as  well  as  their  Perfons  flain,  yet 
fome  Goods  and  things  feem  exempted,   and  ought  not 



(Chap.  III.      M  ^^iMtttV^  0  J  €aptm  i3 

to  be  fpoiJed,  and  therefore  k  is  not  Jawful  to  land  on 
rhc  Territories  of  our  Enemies,    to   fpoil   places  dedi- 
cated to  God  :    though  Pomponitis  obferves,  when  places  Pompon.  Leg. 
are  taken   by  the  Enemy,  all  things  ceafe  to  be  Sacred  j^^'^^^^ ^- ^^ 
1  the  reafon  given  is  becaufe  the  things  which  are  call'd    ^  ^^^^■^^^' 
Sacred,  yet  are  they  not  indeed  exempted  from  humane 
ufes,  but  are  publick.    The  Townfinen^  faith  'Tacitus^  open-  Tacit.  Annal 
ing  their  gates ^  fubmitted  themfehes  and  all  they  had  to  the  13. 
Romans,  themfehes  were  fpared.,  the  Town  was  fired.  Pom- 
pey  ent7'ed  the  'ifemple  by  the  right  of  Vi5iory^    not  as  a  flip- 
pliant^  but  'as  a  Conqueror  :  and  though  that  privilege  may 
feein  right  by  the  Law  of  War  to  a  Sovereign,  or  a  Ge- 
neral, that  intends  a  Conqueft,  yet  that  power  may  not 
feem  devolved  to  him,  whole  Commiffion  is  cautionaily  to  Y^^^^  ^"^  ^^^' 
endamage  the  Enemy  only,  as  in  reference  to  his  ^^^- j^Q^Zancon- 
merce  and  provifions  of  enabling  them  to  withftand  the  13ft  in  taking  . 
War,:    Certainly,  that  Conqueft  is  poor,  whofe  Trophies  and  over- 
and  Triumphs  are  made  up  with  Roofs,  Pillars,  Pofts,  throwing  Ci- 
Pulpirs,  and  Pews,  and  the  fpoil  of  Agriculture.     I'^^^'ce  JJfJOV^^"^^^ 
it  is,  that  at  this  day  the  king  of  France  in  Germany  and  done  without 
the  Netherlands  Ticcepts  of  Contributions,    by  which  the  injury  of  the 
Cities  and  Churches   are  not  only  fpared,  but  even  the^^^*^^'^^.^. 
Countrymen  plough  and  fow  as  quietly  as  if  there  were  ^o^^^^^r^^^^^^^^^ 
Armies  in  their  Territories  at  all.    ^  of  the  Gods 

partake  in 
the  fame  ruin,  the  Citizens  and  Priefts  equally  flaughtered;  nor  is  the  rapine  of  facred 
riches  and  prophane  unlike  :  fo  many  are  the  Sacrileges  of  the  Romans  as  their  Tro- 
phies, fo  many  are  their  Triumphs  over  Gods  and  Nations  ;  and  then  goes  further, 
Tot  manubi^  qiiot  manent  adhuc  Jimulachra  capti'vorum  deoriim.  Mox  ilf  benCy  ^uod  Jl 
quid  ad-verji  Urbibus  accidit,  cadem  clades  Templorum  qute  t3'  mosnhim  fuerant . 

Even  upon  the  fame  Reafon,  that  the  Inflruments  of  Hu&bandmen  are  not  to  b-s 
taken  for  a  pledge  by  the  Civil  or  Common  Law.  Leg.  exeunt.  C.  ^uce  res  pigti.  CqkQ 
00  l<iuleton  47. 

XV.  Moil:  certain,  thofe  forts  of  Capers  or  Privateers, 
being  Inftruments  found  out  but  of  later  Ages,  and  'tis 
well  known  by  v/hom,  it  were  well  they  were  reftrained 
by  confent  of  all  Princes  ;  fince  all  good  Men  account 
them  but  one  Remove  from  Pirates,  who  without  any 
refpecl  to  the  caufe,  or  having  any  injury  done  them,  or 
fo  much  as  hired  for  the  Service,  fpoil  Men  and  Goods, 
•making  eveii  a  Trade  and  Calling  of  it,  amidft  the  Cala- 
mities of  a  War,  and  driving'a  commiCrce  and  m^art  with 
the  fpoil,  and  that  with  as  much  peace  and  content,  aa 

'^4  f)f  Pjtiftateet j5  o j  €aptt§.       b  o  o  k  i. 

if  they  had  never  heard  of  Tears,  Blood,  Wounds  or 
Death,  or  any  fuch  things  :  fuch,  to  expofe  their  lives 
againft  Ships  of  the  like  kind,  were  both  honourable  and' 
jud,  or  thofe  that  fhould  aid  the  Enemy  with  Goods  pro- 
hibited as  afore,  llich  Prizes  were  poflTeflTions  moft  noble  ; 
but  the  Goods,  Ships  and  Lives  of  the  innocent  peace- 
able Traders  to  be  expofed  to  rapine  and  fpoil,  renders 
them  worfe  than  the  Roman  Lidlors,  by  how  much  'tis 
to  kill  without  caufe,  Headfrilen  executing  the  guilty, 
they  the  guiltlefs.  -    " 

It  was  a  high  necefTity  that  enforced  the  Englijh  to  com'. 
mifTionate  fuch,  the  number  of  her  then  Enemies  cover*' 
ing  the  Sea,  like  the  Egyptian  Locufts  ;  it  were  well  they 
were  rejc6led  by  confent,  or  if  allowed  of,  not  fubjedl  tq 
Quarter,  when  taken  by  Ships  of  War :  A  Trade  that 
I  Cor,  i^.  7.  St  Paul  never  heard  of,  v/hen  he  faid.  Who  goeth  to  Wat 
at  his  own  charge  t 



''I  J.  Pirates  n)ohat. 

t||  II.  Of  the  duty  incumbent  on  Princes 
and  States  fs  in  reference  to  fuch, 
and  ^whether  liable  for  the  da- 
mages they  eommit. 

III.  Pirates  ijohere  they  hold  a  So- 
ciety^  howo  the  fame  is  ejieemed  in 
Laiv,  and  of  Equality  held  by  them. 

IV.  Whether  capable  of  the  Solem- 
nities of  Wary  and  Right  of  Le- 

V.  Whether  capable  of  fuccour  by 
the  Lanus  of  Nations. 

VI.  Ships  Inhere  liable  for  redemp- 
tion of  the  Majier  remaining  pledge 

for  Ship  and  Ladingy  and  lohere 

VII.  Oath  given  to  pay  a  renjoard 
for  redemption  of  a  Ship  from  Pi- 
rates, ^whether  the  fame  ought  to 
be  performed. 

VIII.  Foreigners  fpoiled  by  Engli{h 
Pirates^  may  purfue  fcr  Jujiice 
tvuithin  the  Statute  of  2?,  H .  8 . 

IX.  So  where  the  SuhjeBs  of  any 
foreign  "Nation  committivg  the 
fame^  may  he  punifhed  by  the  fame 

X.  Piracy  committed  by  the  SuhjeBs 
of  a  Nation  in  Enmity  n.vith  the 
Crown  o/Erigland  among  Englifh 
Pirates^  cannot  be  punifhed  by  the 
Statute  of  2^  H.  8. 

XI.  Committed  on  the  Br  it  if?  Seas 
punijhabk  by  the  Cronvn  of  En?"- 
land,  and  none  other. 

XII-  Where  committed  in  the  Ocean, 
fwhether  they  may  be  executed 
^without  trial,  by  the  Lamo  of  Na- 

XIII.  The  like  nx}h ere  the  Judge  re- 
fufes   to   try  them,  or   in  cafe  of 

emergency,  whether  JuJlice  may 
be  executed  immediately. 

XIV.  Pirates  attempting  to  rob, 
(otnmit  a  Murder,  whether  nil 
principals,  or  only  the  flayer ^  and 
the  reji  Acer Jori^s. 

[  SS  ] 

CHAP.    IV. 

XV.  If  the  SubjeSls  of  one  Foreign 
Nation  rob  another,  and  bring  the 
Booty  into  England,  whether  the 
party  injured  ?nny  proceed  Crimi- 
TidWiGV  for punifjmenty  and  Civi- 
\\ttr  for  reftitution. 

XVI.  Pirates  take  Men,  and  no  part 
of  the  Lading,  if  Piracy. 

yiSfW.  Where  a  Mafter  may  commit 
Piracy  of  thofe  things  that  are 
committed  to  his  charge,  and 
fivhere  not. 

XVIII.  Where  Piracy  may  he,  though 
there  be  nothing  taken  :  and  nvhere 
Goods  are  taken  out  of  a  Ship,  and 
no  body  in  it. 

XIX.  The  Captain  and  Crenv  of  a 
Veffel having  a  Commijjion  of  Re- 
prize commit  Piracy,rf  hether  thofe 
that  employed  them  ought  to  an- 
fwer  the  Damage. 

XX.  Where  Goods  taken  at  Sea 
amount  not  to  Piracy. 

XXI.  Goods  taken  and  retaken  by  a 
Friend,  ivhether  the  Property  of 
th^  Prize  is  altered. 

XXII.  Of  P^eftitiition  of  Goods  taken 
by  Piracy  by  the  Laws  ^England. 

XXIJI.  Of  Reftitution  refufed  by 
the  Laws  rf  England. 

Juftijications  in  this  by  a  War- 
rant  from  the  Admiralty.  The 
Admiralty  muft  allonjo  the  Statute 
of  Limitation  if  pleaded. 

XXIV.  Of  Piracy  as  in  reference  ia 
matters  Criminal,  and  honu  pu- 
nijhable  at  this  Day  by  the  Lawt 
cf  England. 

XXV.  The  Statute  ofz^U.  8.  hio 
it  operates  in  cafes  of  Piracy. 

XXVI.  Of  Pardons  in  cafes  of  Pi- 
racy,   Forfeitures,    Cqrruption  of 
Blood,  and  Clergy, 

XXV f I.  Whether  a  Depredation 
committed  in  a  Port  nvithin  thi^ 
Realm  remains  Robbery,  at  th& 
Cofnmon  Law,  or  Piracy  by  thi^ 
Law  Majine* 


56  SDf  ^iV&Cf.  Book  L 

XXVIII.  mstber  Clergy  is  alloiu*  \ 
able  for  a  Depredation  in  a  Party 
and  if  Pardons  extend  thereto. 

XXIX.  A  Pirate   arraigned  and 
Jlandir7g  mute  ft^all  ha<-je  fudj- 

Tjient  of  Pain,  Fort  and  Dare, 
•  XXX.  Of  the  Operation  of  the  At- 
tainder in  cafes  of  Piracy ^ 
XXXI.  Of  Goods  taken  at  Sea  and 
brought  to  Land,  ivhethir  the 
Party  is  punif^able  by  our  La^\ 
Stat.  II.    12W.  ^.    c.  7.   Pii 

I  ra- 

cy ivhere  and  hoiv  triable. 

XXXII.  Jf  the   Admiralty  claims 
either  an  original,  or  a  concurrent  '■ 
Jurifdiaiony     the    Courts  abo've^ 
n.vill  not  intermeddle. 

XXX III.  SatisfaSiicif  of  old,    hozo 
made  to  Perfans  ff oiled  at  Sea. 

XXXIV.  Pirfons  unjuftly   detained 
in  Cujiody  uponSuficion  of  Piracy, 
the  Courts    abo've,   on  a   Habeas  A 
Carpus,  may^  if  the^e  hejuji  caujt, 
either  bail  or  difcbarge  them. 


If  theofien- 

A  pirate  is  a  Sea-Thief,  or  Hoftis  humani generis^  who 
to  enrich  himfclf,  either  by  furprife  or  open 
force,  lets  upon  Merchants  and  others  trading  by  Sea,  j 
ever  fpoiling  their  Lading,  if  by  any  poOlbility  he  can, 
get  the  maftery,  fomctimes  bereaving  thein  of  their 
Lives,  and  finking  their  Ships  ;  the  Actors  wherein, 
"Tully  calls  Enemies  to  al],  with  whom  neither  Faith  nor  Oath 
is  to  hekept.  Againft  Pirates  and  fuch  as  live  by  Robbery 
.  at  Sea,  any  Prince  hath  power  to  make  War,  tho'  they 
are  not  fubjed  to  his  Government.  Grot,  de  jure  belli  ^ 
facis,  lib,  c.  cap.  20.  §  40.  jjf 

11.  By  the  Laws  of  Nature,  Princes  and  States  are  reP 
fponfible   for  their  neglecl  if  they  do  not  provide  Ship* 

ders  couM  be  "^^  ^^'''^^'  ^^.^  ^^^'^^*  remedies  for  the  retraining  of  thofe 
found,  they  ^^^^  o^.  Robbers ;  but  how  far  they  are  bound,  either  by 
ought  to  be  the  Givil  Law  or  Common  Law  of  this  Kingdom.,  may  be 
yielded  up  to  fome  queftio.n  :  for  it  is  agreed  they  are  not  the  caufe  of 

thTy  wTnv^^^  """J'^^  ^P^^^  ^^^^^  '^  committed  by  them,  nor  do  they 
Eftate,  the  '  Partake  m  any  part  of  the  plunder  ;  but  if  a  Prince  or 
fame  ought  to  State  fhould  fend  ion\\' Ships  cf  TVar^  or  Commiffions  for 
go  towards     reprife,  and  tliofe  inaead  of  taking  prizes  from  the  Ene- 

cf'thTda''°""^>''  ^^'"  ^''^^  ^'^^  ^P^^^  the  Subjeds  of  other  Friends, 
iiiage.  there  has   been  fome  doubt,  whether  they  ought  not  to 

.     ■  niake  fatisfadlion  to  the  Parties  injured,  in  cafe  the  offen- 

ders iliould  prove  unable.  Surely  there  is  no  more  reafon 
for  this  latter  than  the  firft  ;  feeing  Princes  and  States 
may  give  all  their  fubjeds  power  to  fpoil  the  Enemy,  nor 
Camion  Is  is  fuch  a  Permiffion  any  caufe  why  damage  was  done  to 
ken  ""do  ^^t^^""*  Friends,  when  even  private  Mm,  without  any  fuoh 
givinrfforth'^P^^"^'^'^"'  might  fend  forth  Ships  of  War -,  befides  it  is 
of  fuch  Com- ^"^po^it)le  that  Princes  or  States  ibould  forefee,  v/hether 
^iiffionsto  *  •  they, 

:hap.  IV.  sDf  imacv^  57 

hey  would  prove  fuch  or  not  ;  nor  can  it  be  avoided,  but  prevent  the 
ve  muft  irhploy  fuch,  othervvife  no  Jrmy  or  Fleet  could  be  h^^*,jjf  P°^*' 
Drepared  ;  neither  are  Kings  to  be  accufed  if  their  Sol-  generally^re-^ 
jiers  or  Mariners  wrong  their  Confederates,  contrary  toftrained  by 
:heir  commands,  though  they  are  obliged  to  punilh  and  Proclamation 
^ield  up  the  Offenders,  and  to  fee  that  legal   Reparation  "^^^^^^^^ 
be  made  out  of  the  Eflate  of  the  Pirates.     If  Letters  of^^^  comman- 
Marque  or  Reprizal  be  granted  out  to  a  Merchant,  andded  that  none 
he  furniflies  out  a  Ship  with  a  Captain  and  Mariners,  and  prefumeto  fet 
they  inllead  of  taking  the  Goods  or  Ships  of  that  Nation  ^^^'^^^^^^^^^^ 
againft  whom  their  C(7»2;;?i^^;^' is  awarded,  take  the  Ships  *  (;^„y^/^,  G^/1 
and  Goods  of  a  Friend,  this  is  Piracy  *  -,  and  if  the  Ships //^  tom.  3.  tit. 
arrive  in  England^  or  in  any  other  of  his  Majefty's  Y^o^'h-Conftitutione 
minions,  the  fame  fhall  be  feized,  and  the  Owners  for^'f'  ^^^i'-v 
ever  lofe  then*  Vellel  f.  ^^^^.^  ^,^,  ,^^, 

fiit.  3.  ///.  2. 
conflit.  Annl  1543.  cap.  \\.  Vtdezi.  Article  at  the  Treaty  at  J?;W«  between  £«'^-' 
land  and  Holland,  and  the  15th  Article  in  the  Marine  Treaty  at  London  1674, 
f  I  Rolls  Ahr.  530.  776. 

From  hence  it  is,  that  Princes  and  States  are  very  cau- 
tious upon  this  we  call  Jure  Belli privati.,  how  they  engage 
themfelves,  or  thofe  who  feek  reparation  for  wrongs  be- 
fore received  -,  for  the  Perfon  injured  governs  not  th^ 
adlion,  but  devolves  the  power  to  fome  other  hired  for 
that  particular  ufe,  whofe  Law  is  no  more  than  this,  ^bere 
is  moft  right  where  is  moft  pay  or  prize.  Unhappy  ftate  of 
man,  v/hofe  fupport  and  living  is  maintained*  only  by  ex- 
pofing  himfelf  to  Death  \  a  Calling  that  nothing  can  make 
honeft,  but  the  higheft  necefijty  or  pious  charity.  And 
therefore  thofe  that  ilfue  forth  fuch  fort  of  Cornmijfions^ 
generally  take  Caution  for  their  returning  within  a  con- 
venient Time,  and  not  to  wander  in  that  unhappy  con- 

III.  Though  Pirates  are  called  Enemies,  yet  are  theyi^l-.  Hops  di 
not  properly  fo  termed  :  For  he  is  'an  Enemy ^  fays  Cicero^  lerb.fignif. 
who  hath  a  Commo/iwealth^  a  Courts  a  Treafury^  Confent 
and  Concord  of  Citizens,  and  fome  way,  if  occafion  he^  of 
Peace  and  League ;  and  therefore  a  Company  of  Pirates  or 
Freebooters  are  not  a  Commonwealth,  though  perhaps  they 
may  keep  a  kind  of  equality  among  themfelves,  without 
"^hich  no  Company  is  able  to  confill  j  and  though  it  is  fel- 


58  ^  flDf  Piracy*  Book  I. 

teg.  Hoflii  de  dom  they  are  without  fault,   yet  they  hold  fociety  to 
Capnvii,        maintain  rights  and  they  do  right  to  others,  if  not  in  all 
Things  according  to  the  Law  of  Nature  (which  among 
many  people  is  in  part  obliterated)  at  lead  according  to 
agreements  made  with  many  other  Nations  :  or  according 
to  Cuftom  :  So  the  Greeks^  at  what  Time  it  was  account- 
ed lawful  to  take  fpoil  at  Sea,  abftained  from  (laughter  and 
depopulations,  and  from  dealing  Oxen  that  plowed,  as  the 
SchoUaft  upon  Thucydides  obferves ;    and  other  Nations 
living  alfo  upon  the  fpoil  when  they  were  come  homt 
from  Sea,  fent  unto  the  Owners  to  redeem  (if  they  pleafed 
at  an  equal  rate)  what  they  were  robbed  of  at  Sea:  and 
at  this  day,  if  a  Ship  hath  the  Emperor  of  Barbarf'l 
protedion,  the  Pirates  of  that  Nation  (if  they  feize)  will 
reftore,  and  if  there  be  no  protedlion,  yet  if  taken  with- 
in ftght  of  their  Caftles,  the  Prize  is  not  abfolute  •,  but  if 
refiftance  is  made,  and  there  be  a  Caption,  fhe  then  be- 
comes the  Captor's  for  ever,  as  the  price  of  Blood, 
Grot,  de  Jure     1^^-  Again,  Pirates  that  have  reduced  themfelves  into 
belli  ^  pads  a  Government  or  State,  as  thofe  of  Algier.,  Sallee,  'Tripo- 
iib,  2.  c,  18. 11^  ^unis.,  and  the  like,  fome  do  conceive  ought  not  toob- 
^'  ^*  tain  the  Rights  or  Solemnities  of  War,  as  other  Tov/ns  or 

places :  for  though  they  acknowledge  the  Supremacy  of 
*  Confiantino-  ^^^  *  Porte.^  yet  all  the  power  of  it  cannot  impofe  on 
pie,  generally  them  more  than  their  own  Wills  voluntarily  confent  to. 
ib  called.       The  famous  Carthoge  having  yielded  to  the  viflorious  6"^/- 
pio.^  did  in  fome  refpe6l  continue,  and  began  to  raife  up 
her  drooping  Towers,  'till  the  knowing  Cato  gave  Coun- 
fel  for  the  total  extirpation  ;  out  of  the  Ruins  of  which 
arofe  'Tunis^  the  revenging  Ghoft  of  that  famous  City, 
who  now,  what  open  Hoftility  denied,  by  Thieving  and 
Piracy  continue  -,  as  (linking  Elders  fpringfrom  thofe  places 
where  noble  Oaks  have  been  fell'd  ;  and  in  their  Art  are  be- 
come fuch  Mafters,  and  to  that  degree  as  to  diflurb  the 
mightieft  Nations  of  the  Weftern  Empire :    and  though 
the  fame  is  fmall  in  bignefs,  yet  it  is  great  in  mifchief:  the 
confideration  of  which  put  fire  in  the  Bread  of  the  aged 
Fuller's  Holy  Lewis  IX.  to  burn  up  this  ne(t  of  Wafps,who  having  equipt 
War  lib,  4.    out  a  Fleet  in  his  way  for  Pakjiine.,  refolv'd  to  befiege  it : 
<"«/•  27'         whereupon  a  Council  of  War  being  called,  the  queftion  was 
Whether  the  fame  fhould  be  fummoned  ?  and  carried,  it 
fhould  not  i  for  it  fjvas  not  fit  tbefoUmn  Ceremonies  of  War 



:hap.iv.  flDf  Piracy*  59 

huld  be  lavijhed  away  on  a  company  of  Thieves  and  Pirates, 
J^otwithftanding  this,  Tunis  and  'Tripoli ^  and  their  Sifter 
dicier  do  at  this  day  (though  nefts  of  Pirates)  obtain  the 
•ight  of  Legation,  and  Sir  John  Lawfon  did  conclude  ^oaoh  c.^w. 
Peace  between  his  Majefty  by  the  Name  of  the  moft  Se-  1662!  But  by 
•ene  and  Mighty  5^?l^Ce  CljiltleS  the  Second,   by  the^^^  Turk  in 
^\Graceof  God  King  of  Great  T>litm^  iftattCe,  ""^^ 'iXZ-'^^'Xm^l^nd 
.'anDj  Defender  of  the  Faith^  &c.  and  the  mofi  Excellent  feakd"in  ^he 

')igniors  ^abamet  TSafljato,  t!je  Dii^an  of  tfje  jaoble  prefence  of 
Ktp  of  Ctmis  i  8)aBo;e  ^uftaplja  T)zU  ^mt  15tU  Almighty 

ind  the  refi  of  the  Soldiers  in  the  Kingdom  of  Tunis :  and  ^°^*   !"  °"^ 
with  them  of  Tripoli  by  Sir  John  Narborough  *  by  /^^^noble^Cky^of 

]v^»;^  ^/ ^alti  nBalljato,  3b?atiim  Dcp,  aga,  DiBartjW;,  theian 

md  Governours  of  the  Noble  City  and  Kingdom  of  'CtipOlf  ^^7  ^^  ^^^ 
r;i  'BaCbatp*    So  that  now  (though  indeed  Pirates)  yet  ^^°"  ^^/^^^i 
having  acquired  the  Reputation  of  a  Government,  they^^^^^^j^^g° 
cannot  properly  be  efteemed  Pirates  but  Enemies.  *  Manh  5/ 

1675-6,  and 
(afterwards,  May  i.    1676.  by  the  Turks)  being  the  26th  day  of  the  Moon  Zaj)birf, 
and  the  year  of  the  H?^/V^,  1087. 

V.  Pirates  and  Robbers  that  make  not  a  Society,  /.  e. 
fuch  a  Society  as  the  Law  of  Nations  accounts  lawful,  are 
not  to  have  any  fuccour  by  the  Law  of  Nations.  Tiberius, 
when  Tacfarinas  had  fent  Legates  to  him,    he  was  dif- 

pleafed  that  both  a  Traitor  and  a  Pirate  fhould  ufe  the  Tadt.  Annal. 
manner  of  an  Enemy,  as  Tacitus  hath  it;  yet  fometimes 3*  ^^A^'^'f^- 
fuch  men  (Faith  being  given  them)  obtain  the  right  of 
Legation,  as   the  Fugitives  in  the  Pyrenean  Foreft,  and  „.  -  ^     , . 
the  Banditti  at  Naples ;  and  Solyman  the  Magnificent,  hav-  vinlt.fol.cxx, 
ing  entertained  Barbarofjo  the  famous  Pirate,  fent  word  to 
the  Venetians^  that  they  fhould  ufe  him  and  efieem  him  no 
more  as  a  Pirate,  but  one  of  their  own  Port. 

VI.  If  a  Ship  is  aflaulted  by  a  Pirate,  for  redemption^,  ad  Legem 
oF  which  the  Mailer  becomes  a  Slave  to  the  Captors,  by  Rhod.  dejaau, 
the  Law  Marine,  the  *  Ship  and  Lading  are  tacitly  obliged  {■  2.  §./»«'?/« 
for  his  redemption  by  a  general  Contribution.  But  if  a  Pi-  \jnpta.  " 
rate  fhall  feign  himfelf  ftranded,  and  to  decoy  the  Mer- *  The  fame 
chant-Man  for  his  relief,  fhall  fire  his  Guns,  or  wave  his  Co-  Poipt,  and  al- 
lours,  who  accordingly  varies  his  Courfe  for  his  Affiftance,  %^\^^^^ 
and  the  Pirate  enters  him,  for  redemption  of  which  he  be-  Enemy!  Lord 

comes  Raymond 932. 

6o  fS>{  PitaC^.  Book  I. 

To    know     comes  a  Slave  to  the  Pirate,  there  contribution  fhall  not 
Pr^ce^d"  ^'^^  ^^  made,  becaufe  it  was  his  folly  to  be  fo  decoy'd. 

in  fuch  Matter  be  legal,  the  Party  muft  wait  till  the  Promovent  has  libelled,  before  he 
can  move  for  a  Prohibition.  7^/V.  934. 

VII.  By  the  Civil  Law  a  Ranfom  promifed  to  a  Pirate,- 
if  not  complied  with,  creates  no  wrong  ;  and  the  reafon 
given  is,  for  that  the  Law  of  Arms  is  not  communicated 
to  fuch,  neither  are  they  capable  of  enjoying  that  privilege 
■which  lawful  enemies  may  challenge  in  the  Caption  of 
another :  however  this  hath  its  meafure  ;  for  a  Pirate  may 
have  a  lawful  pofTefiion,  the  which  he  cannot  be  denied 
(if  injury  or  wrong  be  done  him)  to  claim  the  benefit  of 
Law.  But  the  reafon  of  that  fprings  from  a  more  noble 
Fountain,  which  is  his  taking  a  legal  courfe,  for  by 
that  he  hath  fubmited  to  the  Magiftrate,  and  paid  obedi. 
ence  to  the  Laws  in  demanding  Juftice  ;  befides,  the  fame 
is  not  done  fo  much  in  favour  of  the  Pirate  as  in  Hatred 
of  him  who  firft  commits  the  wrong.  Auguftus  the 
^0^;/;. /.I. r. I. Emperor  proclaimed  a  reward  of  ten  Sefterces  to  be, 
given  him  that  fhould  bring  in  Coracotas^  the  famous  «Sf^- 
mfi  Pirate,  who  having  notice  of  the  fame,  voluntarily 
comes  and  prefents  himfelf  before  the  Emperor,  and  de^ 
rriands  the  promifed  reward  ;  and  the  quellion  was,  whe- 
ther death  or  the  Sefterces  were  to  be  his  reward :  The 
Emperor  gavejudgment,  that  the  fum  promifed,  fliould  be; 
paid  him,  for  otherwife  in  taking  away  his  life  he  fliould 
deceive  him  of  the  fum  promifed,  which  would,  in  effed, 
violate  the  publick  Faith  given  to  him,  who  of  himfelf 
offered  himfelf  upon  the  tryal  of  Juftice. 

A  Pirate  attacks  a  Merchant- Man,  and  enters  her,  for 
redemption  of  which  the  Mafter  gives  his  Oath,  at  a  time 
and  place  to  pay  the  Pirate  a  Sum  certain ;  by  fome  it 
hath  been  held,  that  the  Mafter  commits  not  perjury, 
if  the  price  promifed  for  redemption  be  not  brought  ac-* 
fording  to  the  Oath  ;    becaufe  a  Pirate  is  not  a  determi^ 
Le^.lona  Me^^^^'*  ^^^  ^  common  Encmy  of  all,  with  whom  neither 
d! Expo/.      Faith  nor  Oath  is  to  be  kept:  but  that  is  no  reafon  for 
the  affoiiing  of  the  Vow  :  for  though  the  Perfon  be  de- 
ficient, yet  the  Juft  God  is  concerned  ;  nor  can  that  per- 
fon that  hath  promifed  a  thing,  fatisfy  his  Confcience  a^ 
ter  he  hath  once  delivered  it  to  him,  to  recover  it  back 

again  4 

■^i:HAP.iv.  M  p'rac^    ^  6i 

ain  *,  for  the  words  in  an  Oath,  as  to  God,  are  to  be 
-.derftood  moft  fimply,  and  with  efFed  ^  and  therefore 
ic  that  returned  fecretly  to  the  Enemy,  and  again  depart- 
;d,  made  not  good  his  Oath  concerning  his  Return. 

VIII.  If  an  Englijh  Man  commit  Piracy,  be  it  upon 
:he  Subjed  of  any  Prince  or  RepuHck  in  amity  with  the 
Crown  of  England^    he   is   within   the  purview    of  the 

Stat,  of  28  H.  8.  and  fo  it  was  held  where  one  Winter- On  a  Com- 
fon^  Smith,  and  others,  had  robbed  a  Ship  of  one  M^- miffion  groun- 
turine  Ganlier,  belonging  to  Bourdeaux,  and  bound  from  ^^  ^^  ^^^ 
thence  with  French  Wines  for  England^  and  that  the  fame  ^^^'^^  J^^^  * 
was  Felony  by  the  Law  Marine,  and  the  parties  were  con-  z%Eli%.m,zi, 
vi(5led  of  the  fame. 

IX.  And  fo  if  the  Subjed  of  any  other  Nation  or 
Kingdom,  being  in  Amity  with  the  King  of  England., 
commit  Piracy  on   the  Ships   or  Goods  of  the  En^iflj^  ^ 
the  fame  is  Felony,  and  punifliable  by  virtue  of  the  Stat, 

and  fo  it  was  adjudged,  where  one  Carelefs^  Captain  of  a 

French  Man  of  War  of  about  40  Tuns,  and  divers  others, 

fetting  upon  four  Merchant-Men  going  from  the  Port  of 

Briftolto  Caermathen,  did  rob  them  of  about  1000/.  ior  Rott,^ 

for  which  he  and  the  reft  were  arraigned,  and  found  guil-  ^°  ^^  Ehz.fx, 

ty  of  the  Piriicy.  ^'^* 

But  before  the  Siat.  of  25  Ed.  3.  if  the  fubjedls  of  a  fo-  Normandy  wsls 
reign  Nation  and  feme  Engii/Jj  had  joined  together,  and  loft  by  King 
had  committed  Piracy,  it  had  been  Treafon  in  the  Eng-J^^^"'^^^^^^ 
lijb,  and  Felony  in  the  Foreigners:  And  fo  it  was  faid  by  °[[};;^f5'"^^ 
Shard.,  where  a  Norman  being  Commander  of  a  Ship,  had  ^;;^/^;z^^  and 
together  with  fome  Englijh,  committed  Robberies  on  the  they  were  as 
Sea,  being  taken,  they  were  arraigned  and  found  guilty;  the  i^ow  account- 
Norman  of  Felony,  and  the  Endijh  of  Treafon,  who  ac- ^/^.  T^'.'^^ 
cordmgly  were  drav/n  and  hang'd.  But  now  at  this  Cid,j perShard.'vid. 
they  both  receive  Judgment  as  Felons  by  the  Laws  Marine.  2  H.  ^.cap.6, 

X.  If  the  Subjeds  in  enmity  with  the  Crown  of  England 
be  Sailors  aboard  an  Englifi  Pirate  v/ith  other  EjigliJJo,  and 
then  a  Robbery  is  committed  by  them,  and  afterwards  are 
taken,  it  is  Felony  without  controvefy  in  the  Englifi,  buc 
not  in  the  Strangers  \  for  they  cannot  be  tried  by  virtue 
of  the  Commiffion  upon  the  Statute,  for  it  was  no  Piracy 
in  them,  but  the  Depredation  of  an  Enemy,  for  which 
they  fliall  receive  a  Trial  by  ^aitlilJ  JLtlUS  and  Judg- 
ment accordingly. 

XI.  Piracy 

62  flDf  p'MC^  BooKte 

SeUen  Mare  XI.  PIracy  committed  by  the  Subje6ls  of  the  French 
Clauf.  ^^^-J*  King,  or  of  any  other  Prince  or  Republick,  in  amity  wit^ 
^cf  ReJi'nor  ^^^  Cfown  of  England^  upon  the  Britijh  Seas,  is  punifh-* 
Grimbald  in  able  propcrly  by  the  Crown  of  Etigland  only,  for  the 
temp.  EJ  I .  Kings  of  the  fame  have  tjlud  regimen  i^  dominium  exclu- 
Cited  m  ^ hjl  j^,y^  Q^  the  Kings  of  France^  and  all  other  Princes  and 
of  "tht  Admi-  S^^^^s  whatfoever. 

ralty.  XII.  If  Piracy  be  committed  on  the  Ocean ^  and  the 

Pirates  in  the  Attempt  there  happen  to  be  overcome,  the 
JnjiceremanumC2iY>toTS  are  not  obliged  to  bring  them  to  any  port,  but 
farca  iraxe-  j^^y  expofe  them  immediately  to  punifhment,  by  hanging 
^fihi.ljfirm^ne^^'^  up  at  the  Main-yard  end  before  a  Departure  j  for 
ufus  eji  juris  \  the  old  natural  liberty  remains  in  places  where  are  no 

Tiam  n:anus  in-  Judgments. 

^'ZlfmUa        ^"^  therefore  at  this  Day,  if  a  Ship  (hall  be  on  a  Voy- 
judictsTuaori-'^^}  ^^  ^^^  ^^ft- Indies^  or  on  a  Difcovery  of  thofe  parts 
tate,  rem  «o-of  the  unknown  World,  and  in  her  Way  be  affaulted  by 
bis  dehitam    a  Pirate,  but  in  the  Attempt  overcomes  the  Pirate,  by  the 
Serv!'^n'i  i  ^'^^^^  Marine,  the  VefTel  is  become  the  Captors ;   and 
'they  may  execute  fuch  Beafts  of  Prey  imm.ediately,  with- 
out any  Solemnity  of  Condemnation.     If  we  refped  ex- 
pletory  Juflice,    it  cannot  be  denied,  but  for  the  Con- 
fervation  of  Ship  and  Goods,  a  Pirate  invading  may  be 
flain,  for  the  inequality  between  thefe  things  and  life  is 
made  up  in  favour  of  the  innocent,  and  by  hatred  to 
the  injurious  :  Whence  it  follows,  if  we  regard  only  that 
Oratiorie in A-^^o^'^^^  that  a  Pirate  running  away  with  ftolen  Goods,  if 
ripcratem,     they  cannot  otherwife  be  recovered,  may  be  funk.    D^ 
mofthenes  faid,  //  v:as  very  hard  end  unjuft^  and  contrary 
both  to  the  zvritten  Laws  and  the  common  Rules  among  ft  Men^ 
71  ot  to  he  filtered  to  ufe  Force  againft  him  who  in  a  hofiile  yuan- 
tier  hath  taken  my  Goods. 
Leg.  extat.  D.      XIII.    So  likewife,  if  a  Ship  fhall  be  aflaulted  by  Pi* 
quodmetus,     rates,    and   in   the   Attempt  the  Pirates   fhall  be  over- 
come, if  the  Captors  bring  them  to  the  next  port,  and 
the  Judge  openly  rejeds  the  Trial,  or  the  Captors  can- 
not wait  for  the  Judge  without  certain  peril  and  lofs^ 
Juftice  may  be  done  upon  them  by  the  Law  of  Nature, 
Honorius  &   and  the  fame  may  be  "there  executed  by  the  Captors. 

Iheodoftus  ;  id- 

circo  Judicio'  CaiUS 

rum  njtgor  Ju- 

rifque  ptblici  tuttla  in  medio  conjlituta,  ne  qu'ifiuarn fthi  ipjt  fsrmittere  *caJeat  ultionefit* 

Leg,  nuUi  C.  de  Jud^eif, 


SAP.  IV.  €>f  ^ivacv*  63 

Caius  Cafar  being  but  a  private  Man  purfued  the  Pi- 
■'ies,    by  whom    he    fbrmerly   had  been    taken    and 
jjled,    and   making  up  to  them  with  fuch  a  Fleet  as 
'  poffibly  in  hafle  could  get  ready,  attacked,  burnt,  and 
llroyed  their  Ships,  and  the  Men  he  brought  back  to  p;^^^   r    * 
Anchor,  where  repairing  to  the  Proconful  to  do  Ju-  Cafar. 
:e,  and  he  negleding,  himfelf  turned  back,  and  there 
ng'd  them  up. 

XIV.  If  a  Pirate  at  Sea  aflault  a  Ship,  but  by  force  is 
evented  entringher,  and  in  the  attempt.the  pirate  hap- 
ns  to  flay  a  perfon  in  the  other  Ship,  they  are  all  Prin- 
<als  in  fuch  a  Murder,  if  the  Common  Law  hath  Jurif- 
5lion  of  the  caufe  :  but  by  the  Law  Marine,  if  the  par- 
s  are  known,  they  who  gave  the  wound  only  fhall  be 
ij Incipals^  and  the  reft  accejjories  *  •,  and  where  they  have*  j^^^^  j^/^^_ 
gnizance  of  the  principal,  the  Courts  at  Common  Law  Hams  mdi£ied 
11  fend   them    their    accelTory,    if  he    comes    before  ^^^  ^^^e  mur- 

,jj^j-  cler   of   one 

'  '  yo/jn   Terrey  ; 

id  Bridget  y   Blacky  and  Others   as  AcceiTorles.      Rot.   Admlr.    28.  £//«.  M.  24. 

Yehiftonfol.  134,  135. 

''  XV.  If  a  Spaniard  robs  a  French  Man  on  the  High  Sea,  p^      ^  •  .^ 

th  their  princes  being  then  m  amity,  and  they  hKcv/ne  p^^J^^ia  per- 

th  the   King  of  England^  and  the  Ship  is  brought  into  dua^  mndum 

e  ports  of  the   King  of  En^Mnd^  the  French  Man  x^2.^fu^t^quanquam 

oceed  Crimmaliter  againft  the  Spaniard  to  punifli  him,  ^atadomfuum 

d  Civiliter  to  have  Reftitution  of  his  VefTel :  but  if  the  non  \iutdrunt 

elTel  is  carried  infra  Fraftdia  *  of  that  prince,  by  whofe  ex  Gentium  ju- 

!  bjeft  the  fame  was  taken,  there  can  be  no  proceeding '^^- ^"^^^*?^  ^® 

« Iviliter^    and  doubted  if  Criminaliter  •,  but  the  French-  ^^ci^  c  g  §^ 

tan  -f  muft  refort  into  the  Captor's  or  Pirate's  own  16. 

ountry,  or  where  he  carried  the  Ships,  and  there  pro-* MarcV^Re- 

ed.  P°^^^   ''^°- 

-j"  Leg.  Hojies 
iff  Leg.  Latrones  D.  de  Cap.  Leg.  pojilim  a  Piraiis  ecd.  'lit. 

A  Dutchman.,  but  naturalized  by  the  Duke  of  Savoy ^  The  Caption 
id  living  at  Ff//^  ir^;^<:^,   in  his   Dominions,  procures  ^^^.  |P.  ^^^5* 
'^Commiffwn  from  the  Stales  of  Holland.,  and  coming  to'  ^fg^J^/J,^^ 
'^ghorn^  there   rid  widi  the  Colours  and  Enfigns  of  the  1670.  upon 
)uke  0^  Savoy  ;  the  Ship  Diamond  being  then  in  port,  and  w^'ich  there 
aving  received  her  Lading,  was  afterwards  in  her  ^^y^^^^^^^l^^ 
ge  home  furprifed  by  that  Caper,  and  brought  into  Villa  ^^  ^^^^j, .  ^^^ 



nothing  came  Prancn,  and  there  condemned  and  fold  to  one  Poleman 
°  ^^'  which  Ship  afterwards  coming  for  England^  the  Plaintiff, 

Rott.  Jdmir,  havingNotice,  made  a  feizure  ;  and  uponTrial,' Adjudicati-  r 
rnAn.fupra-  on  paffed  for  the  PJaintiffs,  the  original  Proprietors  :  Fotl 
,   tho'  the  Ship  of  War  and  the  Captors  were  of  ^aviyA' 
and  carried  thither  \  yet  b^ing  taken  by  virtue  of  a  D«/f/| 
Commijfion^  by  the  Law  Marine^  fhe  muft  be  carried  infra, 
Prafidia  of  that  Prince  or  State  by  virtue  of  whofe  Qm- 
wijfion  fhe  was  taken.     Nor  can  fuch  carrying  of  the  En- 
figns  or  Colours  of  the  Dake  of  Savoy^    who  was  then  in 
amity  with  the  Crown  of  England^  or  the  Commander^ 
though  a  fubjed  of  that  Prince,    make  him  a  Pirate,  or 
fubjedt  them  or  thofe  to  whom  they  have  transferr'd  their 
intereft  of  the  prize,    any   ways   to   be  queftioned  for 
the^  fame  Criminaliter  -,    for  that  the  original  q^uoad  the 
♦  3  BuIJirode  taking  was  lawful,  *  as  one  Enemy  might  take fro^n  another; 
28-  but  Civiliter  the  fame  might  be,    for  that  the  Captor 

f  Grotius,  had  not  entituled  himfclf  to  a  firm  poflefTion  t-  And 
/;^.  3.  rfl/.  9.  therefore  in  all  cafes  where  a  Ship  is  taken  by  Letters  oj 
\'1}.'^J^'  Af^^^//^  or  Piracy  *,  if  the  fame  is  not  carried  infra  Pr^Jidin 
Jac'inB.R.^^  ^^^^  Prince  or  State  by  whofe  Subjed  the  fame  was 
Bronvnlonv  taken,  the  Owners  are  not  diverted  of  their  Property, 
7.  part.  We-  but  may  refeize  whcrefoever  thev  meet  with  their 
pn\C.         VefTels.  ^ 

XVI.  If  a  Pirate  attacks  a  Ship,  and  only  takes  away 
fome  of  the  Men,  in  order  to  the  felling  them  for  flavcs, 

C.2  7«/?.  log.this  is  Piracy  by  the  Law  Marine  ;  but  if  a  Man  takes 
^i'cJr'^c'^^'^'^  a  Villain  ox  Ward ^  or  any  other  Subject,  and  fells 
but  Black-      ^h^"^'  ^^^  flaves,    yet  this  is  no  robbery  by  the  Commi 

mail,  and  fuch  LrlW. 
forts  of  tak- 
ing in  Cumberland,  Northumberland,  and  Wejimorland  ^2,^  made  Felony  43.  Lli%.  cap.  13, 

XVII.  If  a  Bale  or  Pack  of  Merchandize  be  delivered  to 
a  Mailer  to  carry  over  Sea  to  fuch  a  Port,  and  he  goes  away 
with  the  whole  Pack  or  Bale  to  another  Port,  and  there 

^ff.Vauta  |-£j]5  ^^^  difpofes  of  the  fame,  *  the  lame  is  no  Felony. 
3  Stalj.  ^^^  ^1  ^^^  ^P^'^s  the  Bale  or  Pack,  and  take  any  thing  out, 

Glannjil.  lib.  animo  furandi^  the  fame  may  araounc  to  fuch  a  Larceny, 
10.  cap.  13,  as  he  may  be  indidled  in  the  Admiralty^  though  it  amounts 
'^afit  cJup.  "^^  ^^  ^  Piracy.  Yet  if  fuch  a  Mailer  of  Ship  Ihall  carry 
Stab,  lib./ea.'^^'^^  Lading  to  the  Port  appointed,  and  after  retakes  the 

7  fe^.  recepit,  wbols 

Chap.  IV.  M  pitacv^  65 

whole  Pack  or  Bale  back  again,  this  may  amount  to  o.  Co.  'i.  hjl. 
Piracy ;   for  he  being  in  the  nature  of  a  Common  Carrier,  ^°7>  ^o^- 
the  delivery  had  taken  its  efFed,  and  the  Privity  of  the 
Bailment  is  determined. 

XVIII.  If  a  Pirate  fiiall  attack  a  Ship,  and  the  Mafter  44^.  3.  14.^ 
for  the  Redemption  fhall  give  his  Oath  to  pay  a  Sum  i^,f^' 
certain  •,  though  there  be  no  taking,  yet  is  the  fame  Pi-  ]^^^^  Jf}^^. 
racy  by  the  Lazv  Marine  -,  but  by  the  Common  Law  there  /.  2.  §./ 
mud  be  an  adual  taking,  though  it  be  but-  to  the  value  of  ^a^vis  a  Pira- 
a  Penny,  as  to  a  Robbery  on  ihz  Highway.  usredcmpta 

If  a  Ship  fhall  ride  at  Anchor,  and  the  Mariners  Hiall^^^^  q.  ii?. 
be  part  in  their  Ship- boat,  and  the  reft  on  the  fhore,  and 
none  fhall  be  in  the  Ship  ;  yet  if  a  Pirate  ihall  attack  her 
and  rob  her,  the  fame  is  Piracy. 

XIX.  A  Merchant  procures  Letters  of  Marque  or  Reprife-,  Trin.  yjac  h 
and  then  delivers  the  Commifiions  to  perfons  to  endeavour  B-  ^-  ^^^'^-^ 

a  fatisf\(flion  -,    if  fuch  Perfons  commit  Piracy,  the  VelTel  ^^''^^t?-53o- 
is  forfeited  without  controverfy:    But  the  Merchant  is  CGnflit .Gallles 
noways  liable  to  make  fatisfaclion  •,  for  though  the  Supe-  ^^'^.[  ^^^'  ?* 
rior  fhall  anfwer  for  the  Aftions  of  his  Minifters  or  Ser-  ^°'it,'^.TL 
vants,  yet  that  is  introduced  by  the  Civil  Law  *,    but  this 
queftion  muft  be  decided  by  the  Law  of  Nations^  by  virtue  yide  Moor'^ 
t)f  which   fuch  Commiffions  are  awarded  or  granted,  the  Reports  776. 
which  does  exempt  any  Man  to  anfwer  for  the  Damages 
of  his  Servants,  unlefs  he  foreknew  that  they  would  com- 
mit fuch  a  Piracy  or  Spoliation,  or  any  way  have  abetted 
or  confented  to  the  fame,  which  right  may  be  forfeited, 
and  the  Civil  Law  let  in  to  acquire  fatisfa6lion.     And  yet 
in  the  Cafe  of  Sir  Edmond  'Turner^  and  Mr  George  Carew,  Viae  the  very 
who  having  Letters  of  Reprizal  againft  the  Dutch,  Mr  L?-ters  of  Rc- 
Carew  by  Indorfement  on  the  back- fide  of  the  Letters  Pa-  "^^^  n/^^^ 
tents  did  nominate  and  appoint  one  Tyrence  Byrne  to  exe- 
cute and  perform  all  fach  adls  and  things  as  by  force  of  the 
Letters  Patents  he  might  lawfully  do  :  I'yrence  Byrne  pro- 
vides Ship  and  Crew,  and  being  at  Sea  takes  a  certain  Ship 
belonging  to  Bruges  called  the  Godelife,    and  there  was 
fome  probable  caule  of  fufpicion^  yet  not  enough  to  war- 
rant a  Condemnation:  Whereupon  the  Owners,  having  j^^^y^      - 
had  fentence  of  Reftitution,  libeli'd  in  t\\Q  Admiralty  againft  Car.  z  ^tSer- 
^ir  Edmond  Turner,  Mr  Carew  and  Byrne,  for  Damages ;  jeants-lnn. 
upon  which  a  Sentence  was  given  againft  the   Defen- 

E  dants, 

66  ^t  piV&tl^*  Book  L 

dants,  who  Appealing,  the  Delegates  confirmed  the  firit 

Sentence.  \ 

Leg.  z.feB,        XX.  But  if  a  Ship  fliall  be  at  Sea  and  in  necefTity,  if  (lie 

f«/-^;«<'«^m ;  attacks  another  Ship,  and  takes  out  fome  Viduals,  Ca- 

D  adl.  Rbod.  y^y^       j^  Anchors  or  Sails,  (efpeciallv  if  that  ot'her 

Leg.  quo  nail-    ^i  •  r  i         x      i  •      •  t%  •  i  i  i 

fragJ\.^uod  oh  I  p  may  1  pare  them)  this  is  not  Piracy  \  but  then  thQ, 
ait.D.dc'vian,  Party  mufb  pay  ready  Money  for  fuch  things,  or  give  g^ 
Leg.  quemad-  ^Qte  or  Bill  for  the  payment  of  the  value  ;  if  on  this  fide^ 
^''''n'  ^frl  the  ^^raits  of  Morocco,  within  four  Months,    if  beyond 

Item  D. ad  Leg.       .  iit/ri  J         -^ 

Jquiliam.       withm  twclvc  Months. 

27  H.  8.  cap.      XXI.  By  the  Law  Marine,  if  Goods  are  taken  by  a  Pi-  ^ 
4-  ^.4-         rate,  and  afterwards  the  Pirate  attacks  another  Ship,  but 
ponius^d'e  acqu.  ""^  ^^  Attempt  is  conquered,  thePWz^  becomes  abiolute- 
ter  dam.         ly  the  Captor's,  faving  the  account  to  be  rendred  to  the.^ 
Admiral     And  it  is  accounted  in  Law  a  jufb  Caption 
of  whatfoever  may  be  got  or  taken  from  fuch  Beafis  of\ 
prey,  be  the  fame  in  their  own  or  in  their  Succefibrs  Pof- 
TerLeg.Muli'  fefTion.     But  then  an  account  ought  to  be  rendred  to  the^ 
er,  eod.  cap.    Jdmird,  who  may  (if  they  happen  to  be  the  Goods  of, 
^^*  the    Fellow- fubjed  of  the  Captors,    or   of    Nations   ia- 

amity  with  his  own  Sovereign)  make  reftitution  to  the 
Owner  ;  the  coils  and  charges,  and  what  other  things  in 
equity  fhall  be  decreed  to  the  Captor,  firft  confidered  and, 
dedudled.  i 

Iffr^^'uo^*  XXII.  Bythe^/^////^of  2  7Eize;.  3.  cap.  13.  ifaMer-. 
chant  lofe  his  Goods  at  Sea  by  Piracy,  or  Tempelt  (not 
being  wreckt)  and  they  afterwards  com^e  to  Land  %  if  he 
•Can  make  proof  they  are  his  Goods,  they  lliall  be  reflcred 
to  iiim  in  places  Guildahk,  by  the  King's  Officers  and 
fix  Men  of  the  Country  -,  and  in  other  places  by  the 
Ix>rds  there  and  their  Officers,  and  fix  Men  of  the  Coun- 
try. If  a  Pirate  takes  Goods  upon  the  Sea,  and  fell^ 
them,  the  Property  is  aot  thereby  changed,  no  more- 
than  if  a  Thief  uoon  the  Land  deals  them  and  fells  them. 
Godb,  193.  Barhr^'s  Cdic. 

This  Law  hath  a  very  near  relation  to  that  of  the  Ro- 
mans, called  De  Ufii-Captione  or  the  Atinian  Law  ;  for 
Atinius  Ena6ted,    That  the  Flea  of  Prefcription  or  long 
poffeffion,  lliould  not  avail  in  things  that  had  been  floln, 
timihi  ^s      ^'"^^  ^^^^  Intereft  which  the  right  Owners  had  fhould  re- 
Jure  Rom.      main  perpetual  j    the  v/ords  of  the  Law  are  thefe,,  ^od 
Avi.  f.  ti.  fiirreptum^ 

Chap.  IV.  M  Witac%\  67 

furreptum  efi^  ejus  rei  sterna  au^oritas  ejjct^  where  by  Au- 
Horitas  is  meant  Jus  Bominii. 

XXIII.  Yet  by  the  Cormnon  Laiv  of  England^  it  has  been  ^%//s  Cafe 
held,  That  if  a  Man  commit  Piracy  upon  the  Subjedls  of  ^  ^^^'^"s 
another  Prince  or  Republick  (though  in  League  with  us)  ^}"''^4"^?^ 
and  brings  the  Goods  into  England,  and  fells  them  in  a  •^>.^^'^'  '^' 
Market  Oi;^r/,  the  fame  fhall  bind,  and  the  owners  are  Grotiusjib.'^, 
forever  concluded  ;  and  if  they  fhould  go  about  in  the  <:-  9-/£-  ]^: 
Admirdiy  to  (\v\Q^\on  the  Property,  in  order -to  Reflitution,  ^  ^^  ^^J^^^^^ 
they  will  be  prohibited,  {a)  Hob.  79.  ^  two^CaL^ 

In  Trover  for  Goods  of  400  /.  value.    Motion  was  for  where  a  pro- 
a  Trial  at  Bar,  the  Goods  being  taken  by  a  SpajtiJJ)  Caper,  i^ibition  was 
and  brbught    into    Plymouth^     and   from   thence  Shipt  f^^^fb^^g  ^^' 
away  without  Condemnation,  becauie  tho*  Br,  Properly  jj-aa  was 
38.  fays  the  Property  is  altered  by  the  Enemy's  pofleflion  made  on 
above  24  hours,    which  is  good  when  they  are  brought  Land  and  un- 
into  fife  Port  of  an  Enemy's  Country,  yet  the  conflant  ff  Jf/o'the"^ 
Opinion  of  the  Civilians  and  the  Practice  at  Guildhall  in  parpofe.    Sed 
i\\t  Butch  War,  is  that  if  fuch  Goods  be  brought  into  a  wV.  Cro.  EL 
Neutral  Port,  or,  as  thefe  were,  into  a  Friend's,  the  Pro-  685.  IV-v. 
perty  is  not  altered  till  Condemnation,  and  thefe  Goods  ^^^'  lef'zJ 
were  taken  from  a  French  Man  in  League  with  us,  which  sluLzeo.iJ. 
is  ftronger  •,  and  this  being  matter  of  Evidence,  tho'  the  Lev.  25.  ifr. 
Defendant  was  only  a  Fador  in  England  coulA  not  con-  ^^J^^.'^.^^* 
demn  the  Goods,  but  the  condemnation  was  in  HolLvid^  hel/thatif 
whither  they  were  fhipt  y  yet  the  Trial  at  Bar  was  granted,  the  Admiral 
3.  Keehle  397.  Verdale  con.  Marten.  Like  C-^Jiz  Radley  and  hath  Jarifdi- 
Belbow  againfl  Eglesfield  &  al.  2  Sa?id,  259.   i.  Vent,  173.  ^'?^°^^'^^ 

Several  Perfons  were  Owners  of  a  Ship,  which  they  thel'lattexs^' 
fent  to  the  Indies  to  merchandize,    upon  the  High  Sea  depending 
the  Mariners  and   Refidue  commit  Piracy.     Upon  the  thereon  fnall 
Return  of  this  Ship  to  the  River  of  Sanies  the  Admiral  ^^  ^T/^^^p 
fciz'd  her,  as  Bona  PyrataTum,  the  Merchants  took  the  ^q^^.^^  ^h?'  ^ 
Sails  and  Tackle  out  of  the^Ship.     The  Admiral  Ihall  not  theyarifeon 
have  the  Goods  iloln  from  other  Men,    but  the  Owner  the  Land, 
(hall  have  them,  i  Rol  Rep,  285.  the  Cafe  o^  Hildehrand 
and  others. 

XXIV.  This  offence  was  not  punilhable  by  the  Common 
Law,  as  appears  by  the  Preamble  of  the  Sfat,  of  28  H.  8. 
^^/>.  15.  but  the  ilime  was  determined  and  judged  by  the 
Admiral,  after  the  courfe  of  the  Civil  Law  •,  but  by  force 
of  the  faid  //^,  the  fame  is  inquired  of,  heard,  and  deter-    ^ 

E  2  mined 

68  ®f  PltScf .  BookI.^ 

mined  according  to  the  courfe  of  the  Common  LaWy   as  if 
the  offence  had  been  committed  on  Land. 

But  by  Lord  Hale^  in  Hijl.  PL  Cr.  Vol.  2.  />.  14,  15. 
The  Court  of  King^s-Bemh  had  certainly  a  concurrent 
Jurifdidlion  with  the  Admiralty,  in  Cafes  of  Felonies 
done  upon  the  narrow  Seas  or  Coaft,  though  it  were  High 
Sea,  becaufe  within  the  ^King's  Realm  o^  England  :  But 
this  Jurifdidion  of  the  Common-Law  Courts  was  inter- 
rupted by  a  fpecial  Order  of  the  King  and  Council, 
35  Ed.  3.  And  fince  38  Ed.  3.  it  does  not  appear,  that 
the  Common- Law  Courts  took  Cognizance  of  Crimes 
committed  upon  the  High  Seas. 
Trial  of  Pi-  Stat.  11.  and  12.  IV,  3,  cap.  7.  All  Piracies,  Felonies, 
racy.  and  Robberies  committed  in  or  upon  the  Sea,  or  in  any 

Haven,  River,  Creeks,  or  Place  where  the  Admiral  hath 
Jurifdi6lion,  may  be  tried  at  Sea,  or  upon  the  Land,  in 
any  of  his  Majefty's  Iflands,  Plantations,  Colonies,  i^c, 
appointed  for  that  purpofe  by  Commiffion  under  the 
Great  Seal  of  England^  or  Seal  of  the  Admiralty  dired- 
ed  to  fuch  Commiflioners  as  his  Majelly  Ihall  think  fit, 
who  may  commit  fuch  Offenders  and  call  a  Court  of 
Admiralty  thereupon  to  confift  of  feven  Perfons  at  the 

And  for  want  of  feven,  then  any  three  of  the  Commiflio- 
ners may  call  others  as  therein  is  mentioned. 

The  Perfons  fo  affcmbled  may  proceed  according  to 
the  courfe  of  the  Admiralty,  and  give  Sentence  of  Death 
and  av/ard  execution  of  the  Ofi^enders,  who  fliall  there- 
upon fuffer  Lofs  of  Lands,  Goods  and  Chattels. 

The  Regifter  of  the  Court,  or  if  none  be,  the  Prefi- 
dent  to  take  Minutes  of  the  Proceedings  and  tranfmit  tha 
fame  to  the  Admiralty  Court  in  England. 

If  any  natural  born  Subje6ls  or  Denizens  of  England 
commit  Piracy  or  any  a6l  of  Hoftility,  againfl  any  of  his 
Majefty's  Subjedls  at  Sea,  under  Colour  of  a  Commiffionor 
Authority  from  any  Foreign  Prince  or  State  or  Per- 
fon  whatfoever,  fuch  Offenders  fhall  be  adjudged  Pi- 

If  any  Commander  or  Mafter  of  a  Ship,  or  Sea-man  or 
Mariner,  turn  Pirate,  or  give  up  his  Ship,  &c.  to  Pi- 
rates, or  combine  to  yield  up,  or  run  away  with  aay 
Ship,  or  lay  violent  Hands  on  his  Comm.ander,  or  eni- 


Chap.  IV.  €>(  pitac^*  6^ 

deavour  to  make  a  Revolt  in  the  Ship,  he  fhall  be  adjudg- 
ed a  Pirate  and  fuffer  accordingly. 

All  Perfons  who  after  the  29th  of  September  1700, 
Ihall  fet  forth  any  Pirate  ('or  be  aiding  and  affiiling  to 
any  fuch  Pirate)  committing  Piracy  on  Land  or  Sea, 
or  fhall  conceal  fuch  Pirate,  or  fliall  receive  any  VefTel 
or  Goods,  Piratically  taken,  fliall  be  adjudged  accef- 
fory  to  fuch  Piracy,  and  fuffer  as  Principals,  according  to 
the  Statute  of  28  H,  8.  which  is  hereby  declared  to  be  in 

When  any  Englifi)  Ship  fhall  have  been  defended 
by  Fight  againft  Pirates,  and  any  of  the  Officers  or  Sea- 
men killed  or  wounded,  the  Judge  of  the  Admiralty 
or'  his  Surrogate  in  London^  or  the  Major,  or  chief 
Officer  in  the  Out-Ports,  afllfted  by  four  Subfcantial  Mer- 
chants, may  by  Procefs  out  of  the  faid  Court  levy  upon 
the  Owners  of  fuch  Ships,  (^c,  a  Sum  not  exceeding 
2  /.  per  Cent,  of  the  Value  of  the  Freight,  Ship  and 
Goods  fo  defended,  to  be  diflributed  among  the  Officers 
and  Seamen  of  the  faid  Ships,  or  Widows  and  Children 
of  the  flain. 

A  Reward  of  10  /.  for  every  VefTcl  of  100  Tuns  or 
under,  and  15  /.  for  every  Veffcl  of  a  greater  Burden 
fhall  be  paid  by  the  Captain,  Commander  or  Mafcer,  to 
the  firfl  Difcoverer  of  any  combination  for  running  away 
with,  or  deftroying  any  fuch  Ship  at  the  Port  where  the 
Wages  are  to  be  paid. 

The  CommifTioners  aforefaid  fhall  after  the  29th  of 
September  1700,  have  the  fole  power  of  trying  the  faid 
Crimes,  and  Offences  within  the  Colonies  and  Plantati- 
ons in  America  governed  by  Proprietors,  or  under  Grants 
or  Charters  from  the  Crown,  and  may  iffue  their  War- 
rants for  apprehending  fuch  Pirates,  &c.  and  their  Ac- 
cefTories  in  order  to  their  being  tried  there,  or  fent  intp 

CommifTions  for  Trial  of  the  faid  Offences  fent  to  any 
Place  within  the  Jurifdi6lion  of  the  Cinque  Ports,  fhafl 
be  diredled  to  the  Lord  Warden  of  the  Cinque  Ports,  or 
his  Lieutenant,  and  fuch  Perfons  as  the  Lord  Chancellor 
fhall  appoint  -,  and  the  Trial  to  be  by  the  Inhabitants  of 
the  Cinque  Ports. 

P  3  Ail 

ax   PiraCf ♦  Book 

All  Seamen,  Officers  and  Sailors,  who  Ihall  defert  the 
Ships  or  Vedels,  wherein  they  are  hired  for  a  Voyage^ 
fliall  forfeit  their  Wages. 

If  any  Mafief  of  a  Merchant  Ship  or  Veflel  fliall  after 
the  29th  of  Sdptemher  1700,  during  his  being  abroad, 
force  any  Man  aflioar,  or  wilfully  leave  him  behind,  or 
refufe  to  bring  all  his  Men  home  again,  who  are  in  a  Con- 
dition to  return,  he  fhall  fuffer  three  Months  Imprifon-< 

The  above  A6i;  1 1  and  12  IF.  3.  ch.  7.  was  continued  by 
J  Geo.  I.  ch,  25.  for  five  Years,  i^c,  and  was  made  per- 
petual by  6  Geo.  i.  ch.  19..  And  tis  enadied  by  4  Geo.  1. 
ch.  II.  fee.  7.  that  all  Perfons  who  fhall  commit  any  Of- 
fence for  which  they  ought  to  be  adjudged  Pirates,  Fe- 
^  Ions,  or  Robbers,  by  1 1  and  12  W.  '^.  may  be  tried  and 
judged  for  every  fuch  Offence,  according  to  28  H.  8,  and 
fhall  be  excluded  from  their  Clergy. 

By  Stat.  8.  G<:o.  i.  ch.  24.  Sec.  i.  If  any  Commander 
of  a  Ship,  or  Other  Perfon,  fhall  any  v/ife  trade  with  any 
Pirate,  or  fhall  furniih  any  Pirate  with  Ammunition  or 
Stores,  or  fit  out  any  Ship  with  fuch  defign,  or  confede^ 
rate  or  correfpond  with  any  Pirate,  knov/ing  him  to  bt, 
fuch,  fuch  Perfon  fliall  be  adjudged  guilty  of  piracy; 
and  fhall  be  tried  according  to  Stat.  28.  //.  8.  ch.  j^, 
and  Stat,  n  and  12  IV,  3.  ch.  7.  and  being  convicled 
fhall  fuffer  as  a  Pirate.  And  perfons  belonging  to  any 
Ship,  who  fhall  upon  meeting  any  Merchant- man  up* 
on  the  High  Seas,  forcibly  board  fuch  Ship,  and  though 
they  do  not  carry  off  fuch  Ships,  fliall  throv/  overboard, 
or  dcflroy  any  part  of  her  Goods,  fhall  be  punifhed  as 

And  ibid.  fee.  2.  Every  Ship  fitted  out  with  defign  to 
trade  with,  or  fupply  any  Pirate,  and  all  the  Goods  put 
on  board  fuch  Ship,  ihall  be  ipfo  fa^o  fovkkcd.,  one  Moie- 
ty to  the  King,  and  the  other  to  the  Informer,  to  be  re- 
c6vered  in  the  High  Court  of  Admiralty, 

And  ibid.  fee.  3.  All  perfons  declared  AccefTories  by  11 
and  12  JV.  '^.  are  hereby  declared  principal  Offenders. 

And  by  fee,  4.  Offenders  convided  on  this  A61  are  ex- 
cluded Clergy. 

XXV.  The  A^:  11  and  12  IV.  3.  ch.  7.  does  not  alter 
the  Offenccj  or  make  the  Offence  Felony,  but  leaves  the  Of- 


Chap. IV.  M  ISttaC^  7^ 

fence  as  it  was  before  this  A(5l,  viz.  Felony  only  by  the  C/-  Cok  3.  /»///. 
'vil  Law^  but  giveth  a  mean  of  Trial  by  the  Common  Laii\  '^^^'  ^^^^^^\ 
and  infli(^eth  pains  of  death,  as  if  they  had  been  attainted  of 
any  Felony  done  upon  the  Land.     The  Indiflment  muft 
mention  the  fame  to  be  done  upon  tPie  High  Sea. 

Note,  By  2  Geo,  2.  ch.  21.  If  any  Perfon  be  felonioufly 
ftricken,  or  poifoned  upon  the  Sea,  or  at  any  place  out 
of  England^  and  dies  in  England.,  or  ftricken  or  poifoned 
in  England,  and  dies  on  the  Sea,  or  out  of  England  \  the 
Fa<ft  is  triable  in  any  County,  according  to  the  ,Courfe 
of  the  Common  Law,  except  Challenges  for  the  Him- 

XXVI.  A  pardon  of  all  Felonies  does  not  extend  to  Moore  756. 
Piracy,  but  the  fame  ought  efpecially  to  be  named  ;  and  py-  308.  But 
though  there  be  a  Forfeiture  of  Lands  and  Goods,  yet  ^^ ^^.^  ^^^^y  *^^ 
there  is  no  corruption  of  Bloorf,  nor  can  there  be  an  Ac-  f"?"^e  Ad-' 
cejfory  of  this  offence,  tryed  by  virtue  of  this  Statute  ;  but  miral,  and  not 
if  there  be  an  AccefTory  upon  the  Sea  to  a  Piracy,  he  before  ^  the 

muft  be  tryed  by  the  Civil  Law.  e^rsT'f  h"" 

ThQ  Statute  of  35  fi.  8.  cap.  2.  taketh  not  away  the  fg'^^no  ^"y^Jp® 
Statute  for  Treafons  done  upon  the  Sea,  nor  is  Clergy  al-  tion  of  Blood 

lowable  to  the  Party  on  the  Statute  2S  H.  8.  vide  14  Jac.  °^  forfeiture 
in  B,  R.  Moore  756.  plac.  1044.  3  ^^fi-  ^  1 2.  ^^d^T"^^  * 

XXVII.  Though  a  Port  be  Locus  publicus  uti  pars  Oce-  \  infl   '^'cn: 
mi.,  yet  it  hath  been  refolved  more  than  once,  that  all  njid.  popa 
Ports,  not  only  the  Town,  but  the  Water  is  infra  corpus  §•  3o- 

If  a  Pirate  enters  into  a  Port  or  Haven  of  this  King-  j^-^^  2  1     ^ 
dom,  and  a  Merchant  being  at  Anchor  there,  the  Pirate  ihers  robbed 
aiTdults  him  and  robs  hiiTi,  this  is  not  Piracy.,   becaufe  the  ^^e  Ship  of 
fame  is  not  done  fuper  altum  Mare ;    but  this  is  a  down  ^^P^^^"  ^^^^^% 
right  Robbery  at  the  Common  Law.,  >for  that  the  Ad  is  in-  chandtze^l?' 
fra  corpus  Ccritafus.,  and  was  inquirable  and  punifhable  oae  Mr  Mo/s, 
by  the  Common  LaWy    before  the  Statute  of  28  i/.   g.  aA4ercliantin 

cup.   15.  .  London;    and 

they  were  in=. 
,     „  _  dided  for  it 

at  the  Ccmmon  Law,  and  were  found  guilty  of  the  fame,  ^nno  22  Car.  2.  at  the 

XXVIII.  So  if  fuch  a  Piracy  or  Robbery  be  made  in  ^^oore  7^6. 
a  Creek  or  Port,  in  fuch  cafes  it  has  been  conceived,  that  *  ^^^-  ^^^'^ 
Clergy  is  allowable  upon  the  Statute  of  28  H.  8.  but  if  it  ^^^^[^^  ^^^ 
be  done  fuper  altum  Mare.,   there  no  Clergy  i§  allowable  •,  was  fo  ruled 

E  4.  ,  how- 

72  €>f  PiVaCV*  Book  I    ' 

bythe-opmion  howbeit,  if  ftich  a  Robbery  be  committed  on  great  Rivers  . 
o   Sir  Lyonel  ^\^Yi\n  the  Realm,    which  are  look'd  upon  as  common 
the  reft  of  the  Highways,  there  perhaps  Clergy  may  not  be  granted  •,  and 
Judges,  upon  fo  it  was  rul'd  in  the  aforefaid  Cafe  of  Hyde,  who  with  a 
the  Piracy      parcel  of  Men  came  one- Night  in  a  Boat  in  the  River  of  • 
oXi'and^o^-  "^^^^^^^^^  ^^^  "nder  the  Colour  of  Prefs-Mafters,  board- , - 
thers ;  and  he  cd  t^"^^  Ship  of  one  Captain  67//f,    and  robb'd   her,  for 
was  executed  which  being  taken  and  tried  at  the   Old-Baily,   by  the 
Jnno  1674.     greater  Opinion  of  the  Judges  there  prefent,  22  Car.  1. 
'Vide  19  E.  3.  Q^y.^y  ^y^g  cienied  him.    By  the  Pardon  of  all  Felonies,  ati 
9  H.  4.  2.     ^he  Common  Law,    or  by   the  Statute-'Law,  Felony  fuper 
Ma.']^b.\ln{l.  altum  Mare  is  not  pardonable  *,  for  though  the  King  may 
i^i^Dy-  30S.  pardon  this  Offence,  yet  being  no  Felony  in  the  eye  of  the 
Law  of  this  Realm,   but  only  by  the   Civil  haw,    the 
pardon  of  all  Felonies  generally  extends  not  it  •,  for  this 
is  a  fpecial  Offence,    and   ought  efpecially  to  be  men-;: 
tioned.  .? 

XXIX.  One  Cohham  was  arraigned  in  Southwark,  befores 
the  Commiffioners  of  Oyer  and  Terminer,  for  a  Piracy:', 
and  Robbery  committed  on  a.  Spaniard,  ^  ftetit  mutuus  Q 
7toluit  direBe  refpondere  :  And  it  being  moved  by  the  At* 
torney-General,  v/hether  he  ought  to  have  the  Judgment 
of  pain  fort  ^  dure  in  this  Cafe,  Saunders,  Chief  Baron, 
,  Brown  and  Dyer  v/ere  of  Opinion  he  fhould,  and  that  by 
the  Words  and  reafonable  Intendment  of  the  Statute 
of  28  H.  8.  c,  15.  and  according  to  the  Opinion  fnpra, 
the  Judgment  was  given  by  Car  us  Serjeant.      Dy,  241. 

i^'  49-'*1-      XXX.  A  Man  attainted  by  virtue  of  that  Statute,  for- 

^l^r^n^^^^  feits  his  Lands  and  Goods,  yet  there  works  no  corruption 

.V  '  -^  ■      'of  blood,  by  virtue  of  that  Attainder;  nor  can  there  be 

any  Acceffory  of  Piracy  by  the  Law  of  this  Realm  ;  but 

if  it  falls  out  that  there  is  an  Acceffory  upon  the  Sea,  fuch 

Acceffory  may  be  puniflied  by  the  Civil  Law,  before  the 

Lord  Admiral,  but  he  cannot  be  punifhed  by  virtue  of 

this  A61,  becaufe  it  extends  not  to  Acceffories,  nor  makes 

tLie  Offence  Felony. 

28  Eliz.  But-      XXXL  If  one  fleal  Goods  in  one  County,  and  brifigs 

ler's  Cafe  ci-  them  into  another,  the  Party  maybe  indicled  in  either 

ted  3.  hjiu.    County;  but  if  one  commits  Piracy  at  Sea,  and  brings 

JqI.  113.         ^Yit  Goods  into  a  County  in  England,  yet  he  cannot-  be 

indicled   upon  the  Statute,  for  that  the  original  takirig 


:hap.  IV.  ^t  WivacV'  73 

vas  not  Felony,  whereof  the  Common  Law  took  Cogni- 
XXXII.  If  a  Man  is  taken  on  fufpicion  of  Piracy^  and  Marj^'s  Cafe 

I  Bill  is  preferred  againfl  him,  and  the  Jury  find  Ignora-  ^3  >^-  ^'^^^^ 
itus',  if  the  Cowrto^  Admiralty  will  not  difcharge  him,  ^^^^ 'y;  2^" ' 
he  Court  of  King* s -Bench  will  grant  a  Habeas  Corpus, 
md  if  there  be  good  Caufe,  difcharge  him,  or  at  leafl  take 
Bail  for  him  :  But  if  the  Court  fufpedls  that  the  Party  is 
t^uilty,  perhaps  they  may  remand  him  ;  and  therefore  in 
all  cafes,  where  the  Admiralty  legally  have  an  original,  or 
a  concurrent  Jurifdid;ion,  the  Courts  above  will  be  well 
informed  before  they  will  meddle. 

Trefpafs  for  breaking  a  Ship,    and  taking  away  the  jujiijicathn  in 
Sails ;  the  Defendant  juftified  by  warrant  out  of  the  Ad-  Tref.  by  ivar- 
miralty,  by  which  he  entered  the  Ship,  and  took  away  rant  of  the  Ad^ 
the  Sails.  Objedlion,  The  breaking  is  not  anfwered,  pr  Cu-  ^^^^  ^* 
r'lam  its  good  enough,  for  the  entry  is  a  breaking  in  Law, 
as  Claufumf regit ^  &c.    And  that  he  may  carry  away  the 
Sails,  becaufe  this  is  the  manner  of  their  proceedings,  and 
grounded  upon  Reafon,  becaufe  the  Ship  cannot  be  kept 
fafe,  if  the  Sails  be  not  carried  away.     Creamer  againft 
Tokely.    Latch  188. 

Suit  in  the  Admiralty,  the  Defendant  pleaded  the  Sta-  statute  of  Li- 
tute  of  Limitation;  if  that  Court  deny  the  Plea,  Prohibi-  mitation  plea- 
tion  will  be  granted,  or  if  they  do  receive  the  Plea,  but  dable there, 
will  not  give  Sentence  accordingly.  Prohibition  will  go. 
Hardres  ^02.  Berkly  and  Morris. 

If  a  Man  be  in  cuftody  for  Piracy,  if  any  aids  or  aflills  Tehertom^j^, 
him  in  his  Efcape,   though  that  matter  is  an  Offence  at  135. 
Land,  yet  the  Admiralty  having  Jurifdidion  to  punifh  the  ^^'^^'  ^^5* 
principal,  may  have  likewife  power  to  punifh  fuch  an  Of-  /^^g^^i'^i 
fender,  who  is  look'd  upon  (^uajl  an  AcceiTory  to  the  Pi-  3^0. 
racy ;  but  to  refcue  a  Prifoner  from  an  Officer  of  theirs, 
they  may  examine  the  caufe,  but  they  cannot  proceed  cri- 
minally againft  the  Offender. 

■  The  Exemplification  of  the  Sentence  of  the  Court  of 
Admiralty^  under  their  Seal,  is  conclufive  Evidence  in  a 
Court  of  Common  Law,     Lord  Raymond^  ^(^^, 
.  XXXIII.  Anciently  when  any  Merchants  were  robbed  ^oEllz.^.par: 
at  Sea,  or  fpoiled  of  their  Goods,  the  King  ufually  ifTued  2  Dor/.  24.  de 
miCommiffwnsundQY   the  Great  Seal  of  England,  to  en-  ^^^fJ^ff^J^ 
quire  of  fuch  depredations  and  robberies,  and  to  punifh  Mercatori'bus 


74  ^f  piracy  EooKi/^ 

fuper  marede-  the  parties ;  and  for  frauds  in  Contra6ts,»to  give  Dai-nao-es 
pradahs.  jq  ^^^  Parties,  and  proceed  therein  feamdum  Legem  &  con^ 
T.'t  Dorf.  the  fii(^fi(din€m  Attgli^^  fecundum  Legem  Mercatoriam^  ^  Legem 
Cafe  of  WilL  Maritimam  ;  all  three  Laws  included  in  the  Commijjions, 

de  Dunjiapley 

a  Citizen  of  IVinton*   Fat.  32  J?.  I.  w.  4.  Dorf.  pro  Willielmo  Ferin  ^  Domengo  Perez 

Mercatoribus,  ^ 

^BuIJlrodezy.      XXXIV.  The  Courts  of  ^^;;?/>/^r  have  a  Sovereigh 
.   power  to  enquire  after  the  Liberty  of  every  Man,  and  th^t 
he  fhould  not  be  deprived  of  the  fame  without  juft  caufe] 
^  and  therefore  as  in  other  capital  Caufes,  fo  likewife  in  thji 

they  may  fend  their  Habeas  Corpus  to  remove  the  Body  of 
any  committed  upon  fuch  an  account,  and  if  they  fee  'i 
juft  caufe,  they  may  either  bail,  or  difcbarge,  or  remand, 
as  the  matter  fhall  feem  juft  before  them. 
Cok  3  Inpt.       And  altho'  the  Statute  of  28  H.  8.  r.  15.  does  not  ah 
foLi^l*        ter  the  offence,  or  make  the  offence  felony,  but  leaveth 
the  offence  as  it  was  before  that  Statute,  {vtx,)  Felony 
only  by  the  Civil  Law^  and  gives  a  mean  of  Trial  by  the 
Common  Law^  and  inflicted  fuch  pains  of  death  as  if  they 
*  ^fff.  Admir.  }^2A  been  attainted  of  any  Felony ;  yet  it  was  refolved  *  by 
Cafe  of  C<?»7^  ^^^  the  Judges,  and  the  reft  of  the  Commiffioners  then 
ion  Gnvyther.   ptefent,  that  his  Majefty  having  granted  Letters  of  Re-^ 
^  al.  prizal  to  Sir  Edmond  'Turner  and  George  Carew,  againft  tht 

Subjects  of  the  States-General  of  the  United  Provinces^ 
and  that  afterwards  that  Grant  was  called  in  by  Procla- 
mation, then  mortified  in  the  Treaty  of  Breda^  and  af- 
terwards fuperfeded  under  the  Great  Seal :  That  Care''d;{ 
(without  Turner)  having  deputed  feveral  to  put  in  Fxe- 
cution  the  faid  Commiflion,  v/ho  accordingly  did  •,  an3 
being  indicted  for  Piracy,  the  fame  was  not  a  felonioij^ 
and  a  piratical  Spoliation  in  them,  but  a  Caption  in  or^ 
der  to  an  Adjudication  ;  and  thoug^i  the  Authority  wai 
deficient,  yet  not  being  done  by  the  Captain  and  his  Ma-? 
^■inersj  animo  depr^dandij  they  were  acquitted.  '• 


C  H  A  i^ 

[75  1 

CHAP.     V. 

I  ^igljt  of  t!je  iJflag,  m  to  t^t  acli«otM« 
in  ing  tlje  ?©ominton  of  tl^e  35rit(l|)  ^ca.s. 

njideratiom  general  as  in  refe- 

ce  to  the  fame. 

Vhether  Princes  may   hame  an 

lufi've  Properly  in  the  Sea. 

That  fuch  an   exdufive  Domi- 

n  Tnay  be,  proved. 

Of  the  Seay   nxihether  capable  of 

vifion  as  the  Land. 

'onfderations   general,     in    re- 

ence  to  Maritime   Cities   touch- 

Sea  dominion. 
Of  the  Sea,  by  reafon  of  its  in- 
hility,  whether  capable  of  fub- 

Of  the  Daminion  of  the  Bri- 
1  Sea  afftrted  long  before,  and 
er  fince  the  Conqueji  of  this  Jfle 
the  Romans. 

.  The  Duty  of  the  Flag,  but  a 
tfecuti've  Ackiwwledgment  of  that 
'ght.     And  of  the  Ordinance  of 


Haftings  declaring  that  Cuffoma" 
ry  obeifance. 

IX.  Confiderations  had 072  fome Trea- 
ties, in  reference  to  afferting  the 
Duty  of  the  Flag. 

X.  Of  the  extent  honvfar  thai  duty 
is  required  and  payable. 

XI.  Of  the  duty  of  the  Flag,  not  a 
hare  Honorary  Salute,  but  a  Right. 

X I  f .  Of  the  importance  and  'value  of 
the  fame  f  as  <\vell  in  Nations  Fo- 
reign, as  in  England. 

XIII.  Of  the  effeas  of  fuch  a  Right 
and  So'yereignty.  Of  the  extent 
of  this  Dominion  by  the  La^ws  of 

XIV.  Of  the  Duty  of  the  Flag  mt 
regarded  as  a  Ci'vilityt  hut  com- 
manded as  a  Duty. 

XV.  Of  the  importance  of  that  ac- 

\  Fter  the  Writings  of  the  Illuflrious  Selden,  cer- 
^^  tainly  'tis  impoffible  to  find  any  Prince  or  Repub- 
or  Tingle  Perfon  indued  with  Reafon  or  Senfe,  that 
ts  the  Dominion  of  the  Briti/h  Sea^  to  be  entirely  fub- 
to  that  Imperial  Diadem  ;  or  the  duty  or  right  of  the 
•,  which  indeed  is  but  a  consecutive  Acknowledgment 
lat  ancient  Superiority  :  Yet  there  have  not  been  want- 
fome,  who  though  they  have  not  queftioned  the  for- 
,  have  highly  difputed  the  latter. 
;ut  there  are  fome  fatal  Periods  amongft  our  Northern 
ions,  when  the  Inhabitants  do  become  fo  brutal  and 
udicate,  that  no  obligation  of  Reafon,  Prudence, 
ifcience,  or  Religion  can  prevail  over  their  PafTions, 
:cially  if  they  become  the  devoted  Mercenaries  of  an 
ilacable  Fa^ion  f,  in  oppofition  to  ail  that  can  be  cal-  ^  lovejtm. 



CHAP.     V. 

tfft  iSt's^t  Gf  tlje  iJflag,  as  to  tU  acfinotu* 
leDfltiTg  t!je  ?©ominion  of  tl^e  35nrtD[)  ^ca.3. 

f .  CoTiJideraiions  general  as  in  refe- 
rence to  the  fame. 

[f.  Whether  Princes  may  hanje  an 
exclufive  Property  in  the  Sea. 

III.  Ihat  fueh  an  exdufive  Domi- 
nion may  be^  proved. 

IV.  OftheSea^  nvhether  capable  of 
Di'vi/ion  as  the  Land. 

V.  Confidtrations  general^     in    re- 
ference to  Maritime   Cities   touch- 
ing Sea  dominion. 

VI.  Of  the  SeUy  by  reafon  of  its  in- 
f  ability,  <vjhether  capable  of  fub- 

^11.  Of  the  Dsminion  of  the  Bri- 
tifh  Sea  afftrted  long  before^  and 
enjer  fince  the  Conqueji  of  this  Jfe 
by  the  Romans. 

VIII.  The  Duty  of  the  Flag,  but  a 
confeculi'ue  Ackiwwkdg/nent  of  that 
Right,     And  of  the  Ordinance  oj 


Hadings  declaring  that  Cujloma' 
ry  obeifance. 

IX.  Conjiderations  had  on  fomeTrea- 
ties,  in  reference  to  afferting  the 
Duty  of  the  Flag. 

X.  Of  the  extent  hoivfar  thai  duty 
is  required  and  payable. 

XI.  Of  the  duty  of  the  Flag,  not  a 
bare  Honorary  Salute y  hut  a  Right. 

XII.  Of  the  importance  and  'value  of 
the  fame  f  as  <\vell  in  Nations  Fo- 
reign, as  in  England. 

XIII.  Of  the  effeas  of  fuch  a  Right 
and  So'yereignty.  Of  the  extent 
of  this  Dominion  by  the  Lanjus  of 

XIV.  Of  the  Duty  of  the  Flag  not 
regarded  as  a  Ci'vility^  hut  com" 
manded  as  a  Duty. 

XV.  Of  the  importance  of  that  ae^ 

I.  \  Fter  the  Writings  of  the  Illuftrious  Seldeft,  cer- 
£\^  tainly  'tis  impoiTible  to  find  any  Prince  or  Rcpub^ 
Ucky  or  Tingle  Perfon  indued  with  Reafon  or  Senfe,  that 
doubts  the  Dcmimcn  of  the  Briti/h  Sea,  to  be  entirely  fub- 
jed  to  that  Imperial  Diadem  y  or  the  duty  or  right  of  the 
Flag^  which  indeed  is  but  a  confecutive  Acknowledgment 
of  that  ancient  Superiority  :  Yet  there  have  not  been  want- 
ing fome,  who  though  they  have  not  queftioned  the  for- 
mer, have  highly  difputed  the  latter. 

But  there  are  fome  fatal  Periods  amongft  our  Northern 
B-egions,  when  the  Inhabitants  do  become  fo  brutal  and 
prejudicate,  that  no  obligation  of  Reafon,  Prudence, 
Confcience,  or  Religion  can  prevail  over  their  Paflions, 
efpecially  if  they  become  the  devoted  Mercenaries  of  an 
implacable  Fa^ion  f,  in  oppofition  to  all  that  can  be  cal-  +  Uvsnm. 

'  led         ^ 

76  €)f  tl^e  flag*  Book  If 

led  either  juft  or  honourable;  we  need  not  rip  up  the 
Carriage  of  that  late  infolent  Son  of  a  Tallozv- Chandler; 
whofe  Deportments  made  him  no  lefs  infupportable  at 
home,  than  he  was  amongft  Foreign  Princes  ;  the  tefti- 
monies  of  his  greateft  Parts  and  Abilities  being  no  other 
than  Monuments  of  his  Malice  and  Hatred  to  this  Nation, 
and  Records  of  his  own  folly.  But  Princes  are  not  to  be 
wrangled  out  of  their  ancient  Right  and  Regalites  by  the 
fubtil  Arguments  of  JVit  and  Sophiftry  ♦,  nor  are  they  to  be 
fupplanted  or  overthrown  by  Malice  or  Arms,  fo  long  as 
God  and  good  Men  will  aflift,  in  which  his  facred  Ma- 
jelly  did  not  want,  when  he  aflerted  his  Right  v/ith  the 
Blood  and  Lives  of  fo  many  Thoufands  that  fell  in  the 

II.  That  Princes  may  have  an  exchifwe property  in  th't 
Sovereignty  of  the  Jeveral  parts  of  the  Sea ^  and  in  the  pajfage, 
Fifhing  and  Shores,  is  fo  evidently  true  by  way  of  ta6l,  as 
no  man  that  is  not  defperatejy  impudent  can  deny  it: 
the  Confiderations  of  the  general  practice  in  all  Maritime 
Countries,  the  neceflity  oi order  in  mutual  Commerce,  and 
the  Safety  of  mens  perfons,  goods,  and  lives,  hath  taught 
even  the  mod  Barbarous  Nations  to  know  by  the  Light  of 
human  Reafon^  that  Laws  are  as  equally  neceffary  for  the 
Government  and  Prefervation  of  the  Sea,  as  thofe  that  ne- 
gotlate  and  trade  on  the  firm  Land  ;  and  that  to  make 
Laws^  and  to  give  them  the  Life  of  Execution,  mud  of 
neceffity  require  a  fupream  Authority ;   for  to  leave  every 

-part  of  the  Sea  and  Shores  to  an  arbitrary  and  promifcu- 
■  ctts  Ufe^  without  a  correcling  and  fecuring  Power  in  cafe 
of  wrong  or  danger,  is  to  make  Men  in  the  like  Condi- 
tion with  the  Fiflies,  where  the  greater  devour  and  fwal- 
iow  the  lefs. 

III.  And  though  the  Sea  is  as  the  Highway^  and  com- 
mon to  all ;  yet  it  is  as  other  Highways  by  Land  or  great 
Rivers  are,  which  though  common  znd  free,  are  not  to  be 

See  that  Plea  ufurped  by  private  Perfons  to  their  own  entire  Service,  but 
of  Chiozzola  remain  to  the  ufe  of  every  one :  Not  that  their  Freedom 
for  the  Fe;:eti-  -jg  {^^q]^^  ^s  that  they  fhould  be  without  Prote^ion  or  Govern- 
^y  cTihe^A-^^^^^  of  fome  Prince  or  Republick,  but  rather  not  exclude 
itriatick  Sea,  the  fame  ;  for  the  true  Enfign  of  Liberty  and  Freedom 
at  the  end  of  is  ProtcEfion  from  thofe  that  maintain  it  in  liberty, 


CrtAP.v.         £)f  ti^e  flag.  ,  77 

IV.  And  as  the  Sea  is  capable  of  Protedllon  and  Go- 
vernment, fo  is  the  fame  no  Jefs  than  the  Land  fubjed  to 
be  divided  amongft  Men,  and  appropriated  to  Cities  and 
Potentates,  which  long  fince  was  ordained  of  God  as  a 
tiling  moft  natural  :  whence  it  was  that  Ariftotle  faid,  ^at 
unto  Mciritime  Cities  the  Sea  is  'the  Territory^  hecaufe  from 
thence  they  take  their  fuftenance  and  defence  \  a  thing  which 
cannot  be,  unlefs  fart  of  it  might  be  appropriated  in  the 
like  manner  as  the  Land  is,  which  is  divided  betwixt  Ci- 
ties and  Governments,  not  by  equal  Parts,  or  according 
to  their  greatnefs,  but  according  as  they  are  able  to 
rule,  govern,  and  defend  them  ;  Berne  is  not  the  greatelt 
City  of  Switzerland ;  yet  ilie  hath  as  large  a  Territory  as 
all  the  reft  of  the  Twelve  Cantons  put  together :  The  Ci- 
ties of  Norembcrg  and  Genoa  are  very  rich  and  great,  yet 
their  Territories  hardly  exceed  their  Walls  :  and  Venice 
the  Miflrefs,and  Queen  of  the  Mediterranean,  was  known 
for  many  Years  to  be  without  any  manner  of  PofTelTion 
on  the  firm  Land. 

V.  Again  on  the  Sea,    certain  Cities  of  great  Force 

have  poliefTcd  large  quantities  thereof;   others  of  little '^^^  [j^^^'^"^® 
Force  have  been  contented  with  the  next  Waters.  alledaed  by 

Neither  are  there  wanting  Examples  of  fuch,  as  not-  xh^Hanjiatique 
withftanding  they  are  Maritime,  yet  having  fertile  Lands  Towns,  at  the 
lying  on  the  back  of  them,  have  been  contented  therewith  ^f^^^^^^^^^^^^- 

•'.  L  -  •  n       TA      •    •  1  tingof  theSo- 

witnout  ever  attempting  to  gain  any  Sea-Domtmon  ;  others  vereignty  of 
who  being  awed  by  their  more  mighty  Neighbours,  have  the  Adriatkk^ 
been  conftrained  to  forbear  any  fuch  attempt;  for  which  Inter  res  com- 
two  caufes  a  City  or  Republick,  though  it  be  Maritime,  TT'  ""^^  '^^' 

■  -1  rr-  fr  r     1       r,  ^     \  Jmperator   nu- 

yet  It  may  remain  without  any  pojjejfion  of  the  Sea.     God  meratmare,^ 
hath  inftituted  Principalities  for  the  maintenance  of  Juftice  Ueo  mmo  in 
to  the  benefit  of  Mankind;  which  is  neceflary  to  be  exe-  ^aripifcari, 
cuted  as  well  by  Sea  as  by  Land  :  St  Paul  faith,  that  for  ]mIT!'i^ 
thiscaufe  there  were  due  to  Princes,  Cufioms  and  Contribu-  adverfus'inU- 

ttons,  bcntem    ccmpe- 

Tf-  tit ad'ioinjuri- 

arunif   I.    \o. 

fi  quis   in   mare,     I.  ivjuriarum^  feSf.    ult.    de  injurits.      Sin  iittora   quoque  communia 

fMt  I.  2.  re  di'uerf.     ^hiia  acceJJ'oriu7n  funt  maris y   l^  accejjhrium  fequiiur  naturam  Prin- 

dpalis,  /.  2.    de  peculio.  legat.  c.  accejjcrium  de  rcg.  jur.    in  6.     Ad  littus   maris    igiiur 

accedere  qui'vis  potejl,   non  pifcandi  tantum  gratia,  fed  etiam  adificandi  ^  occupa;tdi   cau- 

fa  quod  in  tit.  de  acquirend.    Dom,  I.  in  Hit.  ff.  ne  quid  in  ioc.  pub.  Jo.  Angeliui  J.  C.  de 

repub.  Eanfat.  par.  d.fol.  85.  Edit.  Francof.    Jn.   Dom.  1 641.     Bat  thefe  argumencs 

were  eafily  anfvvered  by  the  Venetian  Lawyers  j    ^et?iadmodum  communio  littorum  re* 


-y     • 


M  tt)2  ifla^. 

Book  1 

fringitur  ad  populum,  a  quo  occtipata/unty  lib.  3.  fed.  It  tiara.  D.  de  quid  in  loc.  pub.  hn 
etiam  communio  maris  :  adco  tit  per  fnare  a  nemine  occupatum  na'uigatk  Jit  omnino  libera  ; 
per  mare  autem  occupatum  ab  aliquo  Principe  ii  libiram  habeant  nanjigationem  qui  funt  iUi 
Priiicipi  fubjeSli ;  alii  'veiQ  eatenusy  quatenus  idem  Princeps  permittit.  Julius  Pacius  de 
Dom.  maris  Adriatici. 

It  would  beagreatabfardlty  to  pralfe  the  well  Govern 
ment  and  Defence  of  the  Land,  and  to  condemn  that^ 
the  ^6(1 ;  nor  doth  it  follow,  becaufe  of  the  vailnefs  of  tlft 
Sea^  that  it  is  not  poflible  to  be  governed  and  proteded  j 
but  that  proceeds  from  a  defe^  in  Mankind  ;  for  Defarts, 
though  part  of  Kingdoms,  are  impoffible  to  be  governed 
and  protedled,  witnefs  the  many  Defarts  in  Africk^  and 
the  immenfe  vaftities  of  the  New  World, 

VI.  As  it  is  a  gift  of  God,  that  a  Land  by  the  Laws  and 
publick  Power  be  ruled,  proteded,  and  governed  :  fo  the 
fame  happens  to  the  Sea  •,  and  thofe  -f-  are  deceived  by  ^ 
grofs  equivocation,  who  aver  that  the  Land^  by  reafon  of 
\l%  ft  ability^  ought  to  be  fubjeded,  but  not  the  Sea^  for 
being  an  unconflant  Element,^  no  more  than  Air  \  foraf- 
much  as  they  intend  by  the  Sea  and  the  Air  all  the  parts 
of  the  fluid  Elements^  it  is  a  moft  certain  thing,  that  they 
cannot  be  brought  under  SubjeHion  and  Government^'  be- 
caufe whilft  a  Man  ferves  himfelf  with  any  one  part  df 
them,  the  other  efcapes  our  of  his  power  i  but  this  chan* 
ceth  alio  to  Rivers^  which  cannot  be  detained  :  but  when 
one  is  faid  to  rule  over  a  Sea  or  River,,  it  is  underftood  not 
of  the  Element,,  but  of  the  Site  where  they  are  placed  :  the 
Waters  of  the  Adriatick  and  Britijh  Seas  continually  run 
out  thereof,  and  yet  it  is  the  lame  Sea  :  as  the  'Tyber^  Poe^ 
Rbyne,  Thames,  or  Severn,  are  the  fame  Rivers  they  were 
a  Thoufand  Years  fince  *,  and  this  is  that  which  is  fubjed 
to  Princes  by  way  of  Protetlion  and  Government. 

Again,  it  would  feem  ridiculous  if  any  Man  would  af- 
fert  that  the  Sea  ought  to  be  left  without  Protedion,  JJ'' 
that  any  one  might  do  therein  well  or  ill,  robbing,  fporl*' 
ing,  and  making  it  unnavigable,  or  whatfoever  fhould 
feem  fitting  in  their  Eyes  ;  from  all  which  it  is  apparent^ 
that  the  Sea  ought  to  be  governed  by  thofe  to  whom  it  moft 
properly  appertains  by  the  Divine  Difpofition.  "'^ 

Vlf.  Wlien  '*  Julius  Cccfar  firft  undertook  the  Invafion 
of  this  Ifie^  he  fummoned  the  neighbouring  Gauls  to  iiV" 
form  him  of  the  Shores,  Ports^  Havens y  and  other  things 


*|-  Grotlus  mare 
iih&rum.  Com' 
munio  parit 
difcordiam  : 
quod  communi- 
ier  pojjidetury 
*vitio  naturali 
negligitur  : 
Habei  com^ 
Tnunio  rerum 
Leg.  pater. 
J.  dulcijfime 
Leg,  2. 

^  Qjii  omnia 
fere  Gallis 
erarit  incog' 
nita,   neque 
tniui  tdtiius 

:h AP.  V.        M  tf)t  flag.  79 

Dnvenient  that  might  accelerate  his  intended  Conquejl ;  fr^tor  merca- 
ut  from  them  nothing  could  be  had,  they  anfwering,  All  ^^J'' ""fji ^^^ 
bmmerce  and  Traffick,  and  vifiting  their  Ports,  was  in-  'JquTehipfa 
rdi^ed  to  all  Nations  before  licence  had  •,  nor  could  any  but  guidquampr^^ 
Merchants  vifit  the  fame,    and  then  had  they  places  f  teraramman. 
Tigned  them  whither  they  iliould  come  ;  nor  was  this  ^^^^"""'^  f^^'^'^ 
)ominion  that  the  Britains  then  ufed,  commanded  with-  quJfmtcon^ 
lit  a  Naval  Force  ;    the  fight  of  which  when  Cafar  faw,  tra  GalUam 
e  preferred  them  before  thofe  of  the  Romans  :  For  upon  ^^^^^  ^fi-  ^'^^^ 
lat  occafion  it  was  that  C^^r^    having  feen  thofe  Auxi-  ^"l^f  ffj'l\ 
cry  Squadrons^  which  the  Britains  fent  the  G/iuls  in  their  |  GaulsTown 
'expeditions  againft  the  Romans^    took  occafion  to  find  nediX Tartnouth 
at  that  Warlike  People,  whofe  bare  Auxiliary  Aid  Ihook  ^^'^^Z  then,  as 
le  Flower  of  the  Roman  Squadrons.  'on^oUhf* 

common  pla- 
19  of  Mart  or  Commerce  for  the  Gauls,    ^od  omnibus  fere  Galli  hoflibus  nojiris  inde 
bminijirata  auxilia  intelUgebat» 

And  when  the  Romans  htc^mt  Conquerors  of  this  IJle^ 
le  fame  Right  or  Dominion  was  during  all  their  time  fup- 
orted  and  maintained,  when  they  failed,  round  their  new 
xhieved  Conquejl s  in  the  time  of  Domitian^  Agricola  giv-  Tacit,  in  njita 
ig  terror  to  all  the  neighbouring  Nations,  JgricoL 

But  when  that  Mighty  Empire  became  fubject  to  Fate, 
nd  this  Nation  by  the  continual  fupply  of  Men,  which 
ent  out  of  the  Kingdom  to  fill  up  the  Contingences  of 
le  Roman  Legions,  became  at  laft  fo  enfeebled  as  to  ren-^ 
erusa  Prey  to  th^  Saxons  %  which  Empire  having  fettled 
^cace  with  their  Banijh  Neighbours,  and  quieted  their 
wn  home-bred  Quarrels  ;  and  having  reduced  the  feve- 
al  petty  Kingdoms  of  their  Heptarchy  under  one  Diadem, 
hey  forgot  not  to  aflume  their  antient  Righi  and  Dominion 
f  the  Seas  ;  as  did  the  mofl  Noble  Edg^ir  f,  who  kept  f  Jhitonantii 
lO  lefs  a  Number  than  400  Sail  of  Ships  to  vindicate  and  ^^^  largifiua 
fcertain  his  Dominion,  giving  Protedion  to  the  peaceable,  '^^^^«^'^?«' 
nd  punifhment  to  the  offenders  :  nor  did  his  Succefifors  ;„^  T -p^' 

flit      1      ^~t  yMi/i  t    ^x" 

zlbetdr£d,  Canutus,  Edmond,  and  others  that  followed  of  Edgarus  An- 
he  Banijlj  Race,  any  ways  wave,  reiinquifh  or  lofe  that  glorumBafi- 
Royalty,    but  obfequioully  maintained  the  fame  down  x^o  ^^^'^  omnium* 
he  Conqueror,   and  from  him  fince  for  upwards  of  1200  f„fuZilm  Oc- 
y^ears  in  a  quiet  and  peaceable  PoffelTion.  .  ^eani.qu^Bri- 

tanntam  cir- 
f  npQ  cu7J'j<zcentf(un- 


8o  flDf  tiie  f  lag.  Book  I 

^aramque  NattGnum  qu<e  infra  earn  includuntur,  Imperator  &  Dominus.  Ex  Chart. 
fondam.  Ecclef.  Wigor.  Sir  John  Burroughs,  fol.  12.  Idem  quoque  EdLgzr\i%  ^0. 
Na'ves  congrega'vitf  ex  quibus  omni  anno  poji  Fejium  Pafchale  100.  Naves  ad  quamlihv. 
Anglia  partem  jlatuit ;  Jic  ajiate  Infulam  circumnavigavit :  hyeme  njero  judicia  in  "Bra 
vincia  exercuit.     Ex  Ranulph.  Ceftrenf.  fol.  22.  J.  B. 

To  mention  the  antlent  Commiffions^   and  Exercife  of 

this  Sovereign  Power,  Safe-ccnduEi^  Writs  ef  Seizure ^  At- 

refts^  Records  of  Grants^  and  Licences  to  pafs  through  the 

Sea  and  to  fifli,  Parliament  Rolls  and  the  like,  f  would 

proved  by      make  a  Volume  ;  in  a  word,  li  Right  of  Prefer iption^fuc- 

Mr  Selden,     ceffiou  of  Inheritance^  continual  Claims  matter  of  Fa5f^  cm 

'  that  it  would  fent  of  Uifiory  and  Confeffons^  even  from  the  Mouths  and 

be  imperti-     p^j^g  o^  adverfaries^  be  of  any  moment  to  the  averting  of 

Traft^to  re-    ^  Title,  his  Sacred  Majefty  may  be  prefumed  to  have  as 

liearfe  the      good  a  Title  to  that,  as  the  moft  abfohite  Monarch  thii 

authorities      day  OH  Earth,  hath  to  whatever  he  can  claim  or  does 

fer.  Armach.  Efif.  Hihernia  Sylloge,  />.  121,   163. 

VIII.  Now  the  Duty  of  the  jfltlg  is  no  more  but  a  con 

fecutive  acknowledgment  that  the  Right  and  Dominion  o 

the  Brittfh  Seas^  (not  as  a  bare  Honorary  Salute  or  Cm 

77tony^  but  as  an  ahfolute  Sign  of  the  Right  and  Scvereipt 

of  thofe  Seas  v^here  they  are  obliged  to  flrike  Sail)  are 

him  to  whofe  Flag  they  veil,  and  pay  that  duty  to  ;  ani 

in  fubfcance  is  no  more  but  that  the  King  grants  a  gene 

ral  Licence  for  Ships  to  pafs  through  his  Seas,  that  an 

his  Friends,  paying  that  obeyfance  and  duty,  like  thoft 

fervices  when  Lords  grant  out  Eftates,  referving  a  Ro* 

or  Pepper-Corn^  the  value  of  which  is  not  regarded,  bo 

the  remembrance  and  acknowledgment  of  their  Bemfi 

&or'*s  Right  and  Dominion, 

To  be  paid  by      The  Duty  of  the  Flag  or  Salutation,  is  to  be  paid  nc; 

weU  aTFo      °"^y  ^y  Foreigners,   but  alfo  by  natural  born  Subjeft 

reigners.  '     ^^^^  ^^^h  who  refufe  to  pay  the  fame,    may  be  brought  to 

the  Flag  to  anfwer  that  Contempt. 

That  this  hath  been  an  Antient  Cuflom^  always  wait 
ing  on  that  Sovereignty,  appears  by  that  memorable  Rf 
cord  upwards  of  500  years  fmce  made,  where  it  is  declare^ 
by  King  John  what  the  Antient  Ctiftom  was,    inthet 

interLe^^. Ma-  Words ;  cijat  if  ^  licutenant  in  anp  aiDji?ao*r^  fo 
Tinas fuh fine  oioaiucD  Dp  Cammou  Couucil  of  tijc  Eiitst: jin,  i^ 


Chap.  V.  Mt1^ti!laQr  8i 

tntotmttt  upon  tlje  Sea  anp  ©SfpS  oi  Ctefiels,  la^  ^'^^^*  ^^^«^'  ^^- 
Bert  0?  urt!aoeit5  tfjat  toill  not  ftme  ants  &ni  timf^f'^i"^'. 
mmtt^  at  tfie  Commanament  of  tl)ttimunmivZd  i.^ii 
'Of  tfie  iStng:,  but  U3tU  figfit  asaintt  tljem  of  tlje  jf !eet)  nance  ai  Ha. 
t&at  If  ttep  can  bt  tafeen?  tljep  be  teptttea  as  cEne-  fti^gs* 
mit&y  anD  tfjeii:  ©Sips,  flleffe^  aim  ©oofig  tafeeit 
ano  fo?:ttteli  b$  tije  iSooCS  of  CnemieSr  alttjouglj 
tlje  ©aaecg  o?  f  ofTelTojis  of  tlje  fame  tooults  come 
afceciijacos,  aim  alleoge^  tljat  tijep  are  tlje  Sljipg, 
eicITeis,  anti  ©ao9S  of  tljofe  tijat  are  jFrfenos  to  one 
Uio  ti}t  Mns ;  alio  tfiat  tlje  common  iDeople  in  tlje 
fame  be  cfiamiea  bp  Impjifoument  of  tljeir  'Bmit& 
foi  t&eir  Eebellion,  bp  afrcretioiu 

Thus  this  Immemorial  Cuftom  v/as  by  that  prudent  Prince 
affirmed,  the  which  hath  been  always  before,  and  ever 
fince  (without  interruption)  -by  all  Nations  conflantly  paid 
to  the  Zhips  of  War^   bearing  the  Royal  Standard^    and 
other  of  his  Majefty's  Ships^  wearing  his .  Colours  and  En- 
figns  of  Service  y  he  knowing  that  undoubted  Maxim  of  Leon  Leffim  de 
State,  nat  Kingdoms  are  preferved  by  reputation^  which  isJj'J^^'^'^J^^*. 
as  well  their  fir  ongeft  fupport  in  Peace^  as  their  chief  eft  fafety  j^^^'jg^  * 
in  time  of  War  \  when  once  they  grow  defpifed^  they  are  ei- 
ther fubje^  to  Foreign  Invajions^  or  Domcftick  "Troubles^  the 
which  (if  poflible)  that  Prince  v/ould  have  prevented,  but 
he  lived  when  thofe  Celeftial  Bodies,  which  govern  the 
adions  of  Princes^  feemed  to  frown  on  the  mod  Virtuous 
and  Wife. 

IX.  And  as  there'is  no  Nation  in  the  World  more  ten- 
der and  jealous  of  their  Honour  than  the  EngliJIo  ;  fo  none 
more  impatiently  tolerate  the  diminution  thereof.  Hence 
it  was  that  in  all  Treaties,  before  any  thing  was  afcer-' 
tained,  the  Dominion  of  the  Seas,  ^.ndftriking  the  'Top-fail 
was  always  firft  provided  for. 

In  the  Year  1653.  ^^^^^  ^^^  Dutch  had  meafured  the 
length  of  their  Swords  with  thofe  of  this  Nation,  and 
being  fenfible  of  the  odds,  had  by  their  four  Am- 
lajfadors  moft  humbly  befought  Peace,  this  very  Duty 
of  the  Flag  was  demanded  by  the  15th  Article,  in  thefe 
words  : 

^^ijat  m  &UW  atttJ  ^tm&  of  tlje  xm  ^nitm  ^  ^^'^*  That 
|&?o\)ittceg,  m mil  i©eiiof  ^ar  momm^  be  t&ep  ^C^T&iT 
m  Uiigie  S)l)fp05  01  in  Jfleets,  meeting  at  ©ea  tBitij  ever  infened 

F  •  aUp  any  fuch  Ar- 

8^  ~  J©Ml)elFlag*  Book  I. 

fide  into  any   ^|tj;  of  tljC  ©IjIpS  Of  tW  ©tcltC  Of  England,  01  tit 

Treaty:  Our  f.^^jj,  ftrWcc,  auo  tDcaniis  tije  Stl^  Aj^H  At^tfee  tje 
R)ght  and     ^       ^^j^j,  jpjj3^j,  j jjj.j^  Cop^Cail,  uiitil  tljcp  poffeii 

?ve"he" ./.  bv  •,  ana  ajall  lifeeluifc  fubmit  tUrmfelieis  to  be  itOteli 
/;>?. Sea  having  if  tl)zttto  terjuireB,  aitti  peif  03111  all  otf)zt  tcfp^ctg 
never  been  j^^  to  tljc  fasC  ConimoiHucaltfi  of  England,  to  iDljom 
difputed  be-  jjjg  Domiuioii  mw  ©otieceignip  of  tlje  Britiai  stag 

fore,  but  by     i.<^,^..^ 

an  immemo-     UUUllli*  •  ^ 

rial  prefcrip- 

tion  and  pofTefTion  tranfmltted  to  us,  and  fuppofed  as  unquelllonable  by  all  Princes. 

'•  This  was  fo  peremptorily  demanded,  that  without  the* 
folemn  acknowledgment  of  the  Sovereignty  over  the  Britifh, 
Seas^  there  was  no  Peace  to  be  had.  As  to  the  ac-, 
know/edging  of  the  Sovereignty  and  the  Flag,  they  were  wil-^ 
ling  to  continue  the  /Intient  Cujiom^  but  that  of  Vifitin^ 
was  Ibmewhat  hard  :  'tis  true  the  latter  Claufe  was  by  thfs^ 

LeoahAit^ma,  Ufurper  waved,  for  Reafons  ftanding  with  his  private  lo;-? 

ftL  847.         tereft  ;■  but  the  firfl  was  (with  the  addition  of  the fe  words; 

• —  ftt  fuclj  ttiatiiicr  as  tfje  fame  Ijatlj  been  fo?metlg 
obfetbeD  i\\  anp  tinier  tuljatfoebei:)  made  abfoiute  by 

the  13th  Article  between  Him  and  that  Repuhlick,  in  thefe,. 
Words :  Item  quod  Naves  ^  Navigia  di  Alarum  Fodder  at  a- ^ 
mm  Provinciarum^  tam  hellica  iB  ad  Hojlium  vim  propul^,. 
fandam  injlru^a,  quam  alia,  qii^  alicui  e  Navibus  bellicis-^^ 
hujus  Reipuhlic^  in  marihus  Britannicis  obviara  dederint^ 
vexillum  fuum  e  mali  vert  ice  detrahent,  ^  fupremum  velum 
demittent^  eo  modo^  quo  ullis  retro  tcmporibus^  fub  quocunque, 
anteriori  regimine  unquam  obfervatum  fuit,  and  from  thence 

Sept.i^.1662.  it  was  tranfcribed  into  the  loth  Article  2XlVhitehall,  and 
afterwards  into  the  19th  Article  21  Breda,  and  from  thence 
into  the  6th  Article  made  laft  at  TVefiminfter,  and  thatj 
Claufe  of  fearching  of  each  others  Ships  made  reciprocate, 

Dec.\?>.  1674.  by  the  5th  Article  made  in  the  Marine  Treaty  at  London  ;^ 

^-  ^'  but  that  extends  not  to  Ships  of  War,    but  only  to  the. 

Ships  of  Subjeds.  v 

X.  By  the  Britijh  Seas  in  the  Article  about  the  Flag. 

are  meant  the  four6'^^j,  arid  not  the  Channel  only  ;  for  in. 

*But  now  by  ^^^^  ^^^^^  Article  of  the  Treaty  in   1653,  they  did  exprefs 

the  Jaft  treaty  what  was  meant  by  the  BritiJJj  Seas^, 

at  Weflyninjier 

the  dominion  is  afcertained  from  Cape  Finijlem  to  the  middle  Point  of  the  Land  Van 

\itaten  in  K'jr-v:m  Feb.  o.  1671, 


Chap.  V.  SDf  tlje  flag*  .2^ 

coat  tfje  3i«Ijabitantg  anO  ^uhicm  of  t&e  ffltntt el3  ^^^  ^^'^^  f«^' 

Britain  am  Ireland,  atlB   tlje  3|(leS  tiJttJjm   tl)C  fame,  propofed  by 

commonli^  callet!  tlje  Biitiiii  sea.,  untftoat  anv  mtami  ^^/^;;^«^^^ 
0?  iiifucp  to  be  offcreti  tfjem  fap  tlje  ^aijipg  oj  People  ;;t;[:J'^!f 
of  tljiies  Commontuealtf) ;  but  on  tliecoatrarp  fljalf  of  c//...^' . 


fie  treateD  tuitlj  alt  laue  ana  finenBtp  cffjtc^,  ana  but  th » 5, 
map  iifeelDife  toitl]  tljece  S0eit  of  (LUar  — -  not  £^-  'i/^^  Mjniiters 
ceeDinn;  fucij  a  ji2itmbee  as  Ojall  be  agreeo  upon  —  '?;:^f  °^  . 
fail,  pafg  ana  repafg  tlj^ouBU  tlje  faia  ^eag,  to  ana  z..;!-;!;  ata 
from  tlje  CoiintHes  ana  \^om  bepona  tljem  h  but  m  had  ic  accord. 
cafe  t!je  fata  States-Generai  Hjall  IjaBe  occafioit  to  pafs  ^^g  >  • 
tb?ouiji)  ttje  faia  ©eas  untb  a  gteat  number  of  &3en 
^  of  mat,  tfjep  fljall  gtbe  tfjree  ^ontb^  mtict  of 
f  tfieir  (ntention  to  t&e  Commonlueaitb,  ana  obtain 
tWt  confent  fo^  tlje  paffruff  of  fuclj  a  jf leet,  fo?  p?e- 
benting  of  jeaioufie  ana  mtfunaecaanaing  bettoirt 
tlje  Stares  bp  uieans  tljereof. 

The  firft  part  of  this  Article  doth  plainly  fet  out  the 
extent  of  the  Britifh  Seas^  and  that  it  is  not  the  bare  Cba- 
nel  alone  that  comprehends  the  fame,  but  the  four  Seas : 
and  the  fame  is  further  explained  in  the  Great  Cafe  of 
ConflaMe's,  v/hciQ  the  Dominion  of  the  ^^een  (before  the ///// 29  Zi/z>; 
Union)  as  to  the  Seas,  did  extend  mid-way  between  E?7g-  ^^'-  R-  the 
/Wand  Spain^  but  entirely  between  England  and  France  ;  jf^'^^f  ,^^'p 
t\it  French  never  had  any  right  or  claim  to  the  Britijh  jJ^jJ/^'q^^^ 
Seas  ;    for   in  the  Wars  between  Edward  the   Flrft  and  Leollhrd  ^^ 
Philip  the  Fair^  (all  commerce  on  both  fides  being  agreed  f^^-  7-2- 
to  be  free,  fp  that  to  all  Merchants  whatfoever  there  fliould 
be  inducia^    which  were  cxWtd  fitfferantia  Guerr^^    2iV\d^'e^^''^^^eDom: 
Judges  on  both  fides  were  appointed  to  take  cognizance  ^^'"^^ -''•  2-  '"• 
of  all  things  done-  againfl  thele  Trucks ^  and  fhouid  cxer-  7-  2  . 

cife  Judicium  fecu'fidum  Legem  Mcrcatoriam  &  for  mam  fuf-  Rolls  Ahridg, 
fer amide)  it  was  contained  in  the  firft  provilion  of  that  ^/'r^n.  174, 
League,   that    they   fhouid  defend    each    others   Rights 
againft  all  others  \    this  aftei  wards  occafioned  the  intro- 
ducing that  Judgment  in  the  fame  King's  time,  (before 
thofe  Judges,  chofen  by  both   the  faid    Princes  by   the  ^'^^  4  ^#'^» 
ProSiors  of  the  Prelates^  Nobility^  and  High  Admiral  of^42. 

F  2  E^ng- 

4m  ^ 

84.  £)f  tije  flag*  Book  I. 

England^  and  all  the  Cities,  Towns,  and  Subje6ls  of  £^^. 
layid^  &c.  unto  which  were  joined  the  fuffrages  of  the 
mod  Maritime  Nations,  as  Genoa^  Catalonia^  Spain,  AU 
main,  Zeciland,  Holland,  Friezeland,  Denmark  and  Nor-, 
way,  and  divers  other  Subjeds  of  the  Roman  Empire] 
againft  Reginer  Grimbald,  then  Admiral  of  France,  for 
that  there  being  Wars  between  Philip  cf  France  and  Guy 
Earl  of  Flanders,  he  had  taken  Merchants  upon  thofe 
Seas,  in  their  Voyage  to  .Ftei^rj,  and  defpoiled  them  of 
their  Goods  ;  whereas  the  Kings  o^  England  and  their 
Predeceflbrs  (as  they  all  jointly  do  declare  and  affirm) 
-without  all  controverfy  beyond  the  memory  of  Man  have 
had  the  Supreme  Government  of  the  Englijh  Seas,  and  the 
JJlands  thereof. 
\  Ro.  Jh.  P reefer ihendo  fcilicet  Leges,  Statutaatqtie  interdifia  armo- 

528.  pi.  2.      mm,  naviumqtie  alio  ac  Mercatoriis  armamentis  injlm^a- 
rum,  caufaiiones  exigendo,  tutelam  pr^ehendo,  uhicunque  opus 
ejfet,  atque  alia  conjiituendo  quiscunque  fuerint  neceffaria  ad 
pacem,  jus  ^  aquitatem  confervandam  inter  omnimodas  rates 
An  unlverfal    t^'i^  externas  quam  in  Imperio  Anglicano  comprehenfas  qua  per 
confent  of  all  iUud  tranfterint  -,  fupremam  iifdem  item  fuijfe  atque  eJJe  tute- 
Nations.         i^yyi .  pierum  mix  turn  Imperium  in  juredicendo  fecundum  di5las 
Leges,  Statuta,  prafcripta  Cs?  interdiUa,  aliifque  in  rebus 
qua  ad  fummu'in  hnperium  attinent  in  locis  adjudicatis. 
Which    memorable    Record    apparently    fhews,    that 
4.  hjiit,  142.  the  Kings  of  England  have  had  ijlud  regimen  &  dominium 
Sddencap.z-].  exclufive  of  the  King  o^  France  bordering  upon  the  fame 
Mare  claufum.  g^^g^  ^^^^  ^f  ^]]  other  Kings  and  Princes  whatfoever  •,  and 
it  was  there  adjudged  that  Grimhald\  Patent  was  an  ufur- 
^\r  John  Bur-  patiou  OH  the  King  of  England's  Dominion,  and  he  ad- 
^^^.^^''■^'^^•42' juc^ged  to  make  fatisfa6lion,  or  if  he  proved  unable,  then 
the  King  his  Mailer  fhould,  and  that  after  fatisfadiori  he 
be  rendred  to  punifhment. 

And  as  to  the  fecond  part  of  the  Articles  of  giving  no- 
tice, it  was  but  an  A61  of  common  Prudence  ',  their  late 
unexpeded  Vifit,  which  they  then  gave,  put  the  Englijh 
to  fome  furprife  ;  but  they  facing  the  Batavians,  foon 
made  them  knov/  that  they  were  as  capable  of  beating 
them  home,  as  they  were  then  daring  in  coming  out,  and 
were  not  to  be  braved  out  of  a  Dominion  and  Right, 



Chap.  V.  S)f  ti^e  JTraff.  85 

which  their  Anceftors  had  with  fo  much  Glory  acquired 
and  aflerted. 

X|.    By  the   Article  of  the   Offenfive  and   Defenfive  Anno  1635; 
League  between  France  and  the  United  Provinces^    it  was 
agreed.  That  if  at  any  time  the  Dutch  Fleet  ( — ■. — which  Leoah  AU%. 
were  to  fcour  the  French  Coafis  in  the  Mediterranean  from  ^^fi{ft  TraSi, 
Pirates)  (hould  at  any  time  meet  the  French^  the  Admiral  yj"'    !^^' 
of  the  Dutch  was  to  ft  r  ike  his  Flag  and  lower  his  1.' op -fail -^X  Edit,  Lugdi 
his  firfl  approach  to  the  French  Fleets  and  to  falute  the  Batavor 
Admiral  of  France  with  Guns,  who  was  to  return  the  faid  V*^^^'^  '^54» 
Salute  by  Guns  alfo,  as  was  ufual  when  /Z?^  Dutch  and  Eng- 
lifh  Fleet  did  meet. 

Only  in  this  the  Right  of  the  Flag  o^  England  differs 
from  that  claimed  by  the  French ;  for  if  there  had  been  a 
failure  on  the  part  of  the  Diitch^  of  paying  that  refpe6i:  to 
the  French^  the  fame  would  have  amounted  to  no  more 
but  a  breach  of  the  League  :  but  the  not  llriking  to  the 
King  of  England's  Flag,  is  open  Rebellion  ;  and  the  Article 
does  fo  fignify,  for  it  is  there  mientioned  as  a  Right  and 
Sovereignty,  not  a  bare  Dominion  only,  like  that  of  Jeru- 
falem  to  the  King  of  Spain.  'Tis  very  true,  the  refufing 
of  it  is  an  abfolute  annulling  of  the  Tr^^aty  ;  tor  though 
in  the  League  with  England  it  is  mentioned,  yet  there  is 
nothing  of  any  concefTion  granted  by  the  fame,  but  only 
recognized  there  as  a  Fundamental  of  the  Crown  and 
Dignity  of  the  Kings  of  England  •,  nor  was  the  fame  ever 
fo  much  as  mentioned  in  any  former  Treaty  before  Crom^ 
well's  time,  as  we  have  already  mentioned,  but  it  wlis  al- 
ways a  Claufe  in  the  Infl:ru6lions  of  the  Admiral  and  tlie 
Commanders  under  him.  That  in  cafe  they  met  with 
any  Ships  whatfoever  on  the  Britijh  Seas  that  refufed  to 
ilrike  Sail  at  the  Command  of  the  King's  Admiral  or  his 
Lieutenants,  that  then  they  fhould  repute  them  as  Ene- 
mies (without  expecting  any  declared  Warj  and  deftroy 
them  and  their  Ships,  or  otherwife  feize  and  confifcate 
their  Ships  and  Goods  ;  and  thefe  Inllrudions  amongft 
others  continue  to  this  day.  The  like  are  given  by  the 
Venetians  to  their  Captains  in  reference  to  the  Adriatick 
Sea,  and  by  feveral  other  Princes. 

XII.  The  Duty  of  the  Flag  that  had  been  fo  conflantly 
paid  to  our  Anceftors  is  of  fuch  advantage  to  the  con- 
tinuing the  Renown  of  this  Nation,  that  it  ferveth.  ta 

F  3  imprini 

86-  SDftl^eflag^  Book  I. 

print  nezv  Reverence  in  Foreigners  that  render  it,  and  adds 
new  Courage  to  thofe  of  our  Seamen  that  exa(5l  it :  and 
fince  we  know  how  much  it  imports  a  State  that  it  be 
reverenced  abroad^  and  that  Repute  is  the  principal  Support 
of  any  Government^  it  equally  influenceth  the  Subjcds  at 
Home  and  Foreign  Allies  Abroa^l  And  as  there  is  no  Nar 
tion  in  the  World  more  tender  of  their  Honour  than  the 
EngJifl?^  fo  none  more  impatiently  tolerate  the  diminu4 
tioii  thereof.  With  v/hat  refentmcnts  would  not  only  the 
more  Generous  and  Nobk^  but  even  the  popular  and  vulgar 
Seamen  detefb  this  or  any  fucceeding  Age,  ihould  they< 
remit  or  lofe  that  7^^^^//>y,  thofe  Acknowledgments  which? 
their  PredecefTors  with  fo  much  Glory  aflcrted,  and  the 
Negle6t  whereof  was  always  punifhed  as  open  Rebellicn  ^ 
'  The  indignity  of  fuch  an  Action  being  fufBcient  to  en  flame 
the  whole  Kingdom.  The  confideration  of  which,  befideg 
his  Sacred  Majefty's  own  Royal  Inclination  to  the  fame, 
and  his  evident  teftimonies  never  to  abandon  a  Ceremony 
of  fo  high  a  concernment  ;  witnefs  the  expofing  the  one 
half  of  his  own  heart,  his  Royal  Highnefs^  in  tiie  affert*^ 
ing  the  i^ie,  with  fuch  Fleets  and  in  luch  Battles^  that  nrt 
age  or  time  can  fhew  a  Memorial  of  the  like  ;  are  caiifes 
fufficient  to  create  in  us  new  flames  of  Love  to  thofe  Royal 
Patriots  and  Defenders  of  our  Rights,  Private  Perfons 
move_  1  n__aQ other  jphere^nd  act  by  otherJR.ules  than 
Sjv^xeipi  Powers^  ;  the  regaTj^jF^TredjI^i^^ 
to  attem  t  ^^  oftgntimes^^^g!^^  thoiroTutiljtjr^orQtlier  fe)tiYcr;  \M 

the  change  of   ^^l^f^Jiecelves^^ 

old  Cuftoms  gueftion^dTor^jch  punctilio's,  jf  they  relinquifli'thenrfoc 
and  Ufages,     otKerjemokiments  or  peace  Jake  ;    but  Soyereigns^cj^nript 

anTabufe's     ^SLH^i^^^^^']?!!.  ^^^^^^^  paTticipate  in  their 

are  upon  fuch  Honour  and_Indignities  •,  they  have^Prop^_rtyj_  .a^dire6t 
^n  account  (Right  in  the  former  ^^^Sovereigns  cannot  alienate  or  fuffer 
legally  tole-  tffeir^llbnours  to  be  impairea,  beGau|e  it  ,is  .not^Teally 
^^^^.7*      \     theirs' n  appertains  to  the  Nation  uhlvefellv.  ^nd  thev^re 

omnibus  rebus    —r. — ;^-^- — fr~--^  t-— -^-tr,  ^-tt    y   >r^    — ?^~f^~ >*~j«^H5sft--!-ufc^ju<4^v' 

wetuftasipfa    ^H  eltectually  injured  byTuca  Tranlaclions,   either  becaufe 

plurimum      '        "^"""^        '    '     ^■'  -  ~  ^^ '  /  "       '      '  -^  thc 

habet  d'tgnila- 

t^s  :  ita  ut  MaffalUnfes  quorum  fr^JlarAlJJima  crediiur  futffe  Refpublica,  laudeniur  eo  nomi- 
ne quod  gladio  ad  puniendas  fontes  uji  fint  eodem  a  condita  Urbe,  quo  indicarent  in  minimii 
^uoque  r^biis   antiqua  confuetudims   momenta  fer<vanda.     Frox'nne  en'im  ad  Deum  accedit 
Antiquitas^  fetemitatis  quadarti  indagine.      Grot,  de  Antiq,  Reipub.  Batav.  in  Prafat. 
*  Fide  the  Earl  q{  Shaft ffiurfs  Speech  to  the  Parliament,  1672.     C(^teris  mortalthui 

c  H  A  p.  V.       jsDf  n)t  iiag.  87 

4\  iMeoJiartconftlia^quldfthiconducereputent:   Princlpum  dl'verfam  ejfe  fartem^   quibus  pns- 
"i    cipua  rerum  ad  fummam  dirigenda.    Tacit.  Annal.  lib.  a^,    Si  fama  tua  'videtur  neleffa' 

ria,  reSiam  muneris  iui  adminijlrationem  nan  poteji  condonare.  Leffius  de  Ind.  /.  2.  c.  j<,, 

dub.  24.  §.26. 

'I  the_nidignity  really  extends  to  them^  or  becaufe  the  Go- 

\\  'vernment  znd  jiufbonTy  is'  thereupon  weakned  and  prejudi- 

!i(  teST^which  is  the  greatefl:  of  Civil  detriments  thai  can  be*  ^ 

ctj  hTa  People,  tho'  ordinarily  thty  are  not  aware  ^t^^lgg£  ^ 

tjl  ~^s  Prudence  doth  thus  diftinguilh  b^twlkt  tlie  Demea- 

^1  nov  0^ private  and  puhlick  PerfonS,  fo  doth  Charity  itfelf; 

i  for  though  the  Gofpel  precepts  do  oblige  particular  Perfons 

li  to  bear  Injuries  and  Contumelies  with  patience,  and  to  fur- 

Ij  render  even  the  Coat  as  well  as  the  Cloak  ;  yet  is  not  this 

fo  to  be  conflrued,  as  if  even  private  Chrijiians  were  to 

yield  up  their  Civil  Rights  to  every  infolent  one  that  would 

incroach  upon,  and  ufurp  them,  or  that  they  were  to  de-' 

p-ive  themfelves .  of  thofe  Reparations,    which   the  Law 

and  Government  affords  them  ;  neither  is  it  fo  to  be  un- 

derilood  as-  if  the  Civil  Magiftrate  in  Chriftendcm  might 

not  fecure    himielf  of  that  Obedience   and   Reverence, 

which  is  due  unto  Dignity,  but-^^^r  the  Sword  in  vain. 

Xlir.  This  being  the  value  which  this  Nation  did  al- 
ways place  upon  the  Right  of  the  Flag^  the  v/hich  they  ne- 
ver did  regard  only  as  a  CliSllltp  and  iRefpeCt,  but  as  ^ 

piincipni  Ceffimonp  of  tlje  imqiicOiontible  Eiffftt  of 
tW  imtmx  to  tlje  Dominioit  aim  ^upeiio^itp  of 

tl)e  .aSiaC-Cnt  ©6^05  acknowledged  generally  by  all  the  , 

Neighbour  States  and  Princes  of  Europe^  and  muil  be 
paid  and  acknowledged  by  all  Princes  in  the  Worlds  that 
fhali  be,   or  pafs  on  the  fame. 

The  Etfe^s  of  this  'Dominion  Univerfal^  or  Sovereignty 
which  accrue  to  a  Prince  are  thefe : 

1.  Not  only  the  Regality  of  the  fifliing  for  Pearl,   Co-  Joan^Fahiiu^ 
ral.  Amber,  ^c.  but  likewife  the  Advantage  of  all  Fifh  deDom.Maris^ 
Royal,   as  Whales,  Sturgeon,    ciff.  and  not  only  thofe,  {'V^/'*^* 
but  alfo  the  diredion  and  difpofal  of  all  other  Fifh,  ac-  ^    "  ^  ^^^' 
cording  as  they  ihall  feem  to  deferve  the  regards  of  the 

Publick,  as  in  Spain,  Portugal,  &c.  is  ufed. 

2.  The  prefer ibing  of  Laws  and  Rules  for  Navigation, 
not  only  to  his  own  Subjects,  but  unto  others  Strangers, 
whether  they  be  Princes  of  equal  ftrength  and  dignity 
with'himfeif,  or  any  way  inferior.   Thus  the  Romans  did 

F  4  con£ne 

88  0f  tl^e  jFlag.  Book  I. 

confine  the  Carthaginians  to  equip  out  no  Fleets;  and  for- 
bade Antiochus  to  build  any  more  than  twelve  Ships  ofj 
Grotiusdejure  War :  and  if  Tradition  informs  me  right.  Queen  Eliza-^) 
Belli. L2.C.2,.  heth  interdidled  the  then  French  King  to  build  any  othct) 
^-  'S-  or  more  Ships  of  War  than  what  they  then  had,  with- 

out her  leave  firft  obtained.     The  Athenians  prohibited, 
all  Median  Ships  of  War  to  come  within  their  Seas,  and: 
prefcrib'd  to  the  hacedamonians  with  what  manner  of  Vef- 
fcls  they  fhould  fail.     All  Hiftories  are  full  of  fuch  Pre- 
cedents, which  Princes 'have  enaded  either  upon  Agree*) 
ments  enforced  upon  the  Conquered,  or  Capitulations  be-: 
twixt  them  and  others  (their  equals  or  inferiors)  for  mutual 
joan.Palatius      3-    The  Powcr  of  impofing  Caftom.s,    Gabels,   and^ 
ubifupra.        Taxcs  upon  thofc  that  navigate  in  their  Seas,  or  others 
Julius Paucius  ^^y\{^  fifh  therein;  v/hich  they  do   upon  feveral   rightful 
MDom.  Maris  Q]^         as  protecHiing  them  from  Pirates,  and  all  other. 
Acts  or  Holtilities,  or  airuting  them  with  Lights  and  Sea-' 
marks;  for  which  advantages  common  Equity   obligeth 
13H.3/0/.14.  thofe  that  reap  benefit  thereby,  to  repay  it  witli  fome  ac-i 
5  Coh  63.       knowledgment,  which  ought  to  be  proportioned  accord-; 
ing  to  the  favour  received,  and  the  Expence  v;hich  the; 
Prince  is  at  to  continue  it  unto  them.  .^ 

4.  As  it  is  incumbent  on  a  Prince  duly  to  execute  Jufi 
ftice  in  his  Kingdoms  by  Land,  fo  the  Sea  being  his  Ter- 
ritory, it  is  requifite  and  a  nece0ary  effcdl  of  his  Domini- 
on, that  he  caufe  Juftice  to  be  adminiftred  in  cafe  of  Ma- 
ritime Delinquencies.  j 

5.  That  in  Cafe  any  Ships  navigate  in  thofe  Seas,  they 
{hall  falute  his  floating  Caftles,  the  Ships  of  War,  by. 
lowering  the  Top-fail^  ft r iking  the  Flag  (thofe  are  the  moft 
ufual  Courfes)  in  like  mianner  as  they  do  his  Forts  upon 
Land  ;  by  which  fort  of  SubmifTions  they  are  put  in  re- 
membrance, that  they  are  come  into  a  Territory  wherein 
they  are  to  own  a  Sovereign  Power  and  Jurifdidion,  and 
receive  Protedlion  from  it. 

Thefe  are  the  proper  Effects  of  a  real  and  abfolute 
Sovereignty  over  the  Seas  ;  which  how  they  are  poffeiTed 
hy  x\\t  Venetians^  this  enfuing  Account  will  declare. 

The  Gulph  of  Venice  is  nothing  elfe  but  a  large  Bay 
or  Inlet  of  the  Sea,  which  entring  in  betwixt  two  Lands, 
and  fevering  them  for  many  Miles  continuance,    in  the 



:hap.v.         fiDf  ti^eflag*  89 

>nd  receives  a   flop  or  interruption  of  further  Paflage 
w  an  oppofite  Shore,  which  joins  both  the  oppofite  Shores 
ogether :    It  is  called  the  Gulph  of  Venice^  from  the        ♦ 
[^ity  of  Venice,  fituate  upon  certain  broken  Iflands  near 
jnto  the  bottom  thereof :  it  is  alfo  called  the  Adriatick 
5ea,  from  the  ancient  City  Adria^   lying  not  far  diftant 
1  rom    the  former ;    from   the   Entrance    thereof   unto 
fi:he  Bottom  it  contains  about  fix  hundred  Italian  Miles, 
»Jkvhere  it  is  broadeft  it  is  an  hundred  and  fixty  Miles 
J|  Dver,  in  others  but  eighty,  and  in  moft  an  hundred.  The 
I!  South- Weft  Shore  is  bounded  with  the  Provinces  of  Tug- 
ij  lia  and  Abruzzo  in  the  Kingdom  of  Naples  •,  the  Marqui- 
1  fate  of  Ancona  and  Romagnia  in  the  Pope's  State -,  and 
I  the  Marquifate  of  Trevifana  in  the  Venetian  State  :  The 
I  North- part  of  it,  or  Bottom,  hath  Fn«//  for  its  bounds ; 
i  the  North- Eaft  is  limited  by  Iftriay  Dalmatia,  Albania, 
D  and  Epirus  ;  whereof  Iftria  doth  not  fo  entirely  belong  ,^.g 
to  tht  Vejjetians,   but  that  the  Emperor,    as  Arch-Duke  ofjate  by  the 
of  Gratz^  doth  poflefs  divers  Maritime  Towns  therein  ;  great  Conduft 
inBalmatia^  kving  Zar a,  Spalato  and  Cataro,  they  have  and  good  For- 
nothing  of  importance,  the  reft  belonging  to  Ragufa  and  Q^^^^^lg^  y^^. 
the  Turks :  In  Albania  and  Epirus  they  poifefs  nothing  at  j..q„i  ^^^  q?. 
all,  it  being  entirely  the  Turks  •,  fo  that  he  who  {hall  exa-  ningjmarke, 
mine  the  circuit  of  the  Sea,    which   muft  contain  about  theyhavenow 
twelve  hundred  Miles,  fliall  find  the  Shores  of  the  Vene^  |°,\fdlfn?oft 
iian  Signory,  not  to  take  up  two  hundred  of  them,  omit-  ^^  principal 
ting  feme  Scattered  Towns  and  difperfed  Illands  lying  on  parts  of  the 
the  Turkijh  fide  of  the  Adriatick  Shore.  '      Mona, 

For  the  fecuring  hereof  from  the  depredations  of  Pi- 
rates, and  the  pretences  of  divers  potent  Princes,  as  the 
Pope,   Emperor,    King  of  Spain^   and  the  Great  Turk, 
who  each  of  them  have  large  Territories,  lying  thereup- 
on ;  alfo  to  caufe  all  Ships  which  navigate  the  fame  to  go 
to  Venice^  and  there  to  pay  Cuftom  and  other  Duties,  the 
Republick  maintains  continually  in  adion  a  great  number 
of  Ships,  Gallies,  and  Galliots  \    whereto  alfo  they  add 
more,  as  there  may  be  occafion,   whereof  feme  lie  about 
the  bottom  of  the  Gulph   in  Iftria,    others    about   the 
IQands  of  Dalmatia,  to  clear  thofe  parts  of  Pirates,  who 
have  much  infefted  thofe  Seas,   and  others,  and  thofe  of 
moft  force,  have  their  ftation  in  the  Ifland  of  Corfu  and 
Standia  j  in  the  firft  of  which  commonly  refides  the  Cap- 

90  flDf  tfte  JFlaO;*  Book  I, 

Baptijia  Nani  taifi  of  the  Gulph^  whole  Office  is  to  feaire  the  Naviga^ 
hisHiftory  of  fJQ,^  ^f  fj^^  Gulph^  not  only  from  the  Corfairs^  buttopro* 
^f"f^''l' Vide,  that  neither  the  Gallies  or  Ships  of  the  Pope  or 
448?  King  of  Spain^  nor  Great  Turk  do  fo  much  as  enter  the 

fame,  without  permifTion  of  the  Signiory,  and  upori  fueh' 
conditions  as  beft  pleafe  them  -,  which  they  are  fo  care* 
ful  to  effedl,  that  in  the  Year  1638  the  Turkifh  Fleet  eiV* 
tring  the  Gulph  without  Licence,  was  aflailed  by  the  Ve^ 
fietian  General,  who  funk  divers  of  their  VefTels,  and  com- 
pelling the  reft  to  fly  into  Valona^  he  held  them  there  bit 
fieged,  although  the  fame  City  and  Port  whereon  it  ftand^^ 
be  under  the  Jurifdi6lion  of  the  Grand  Signior\  and  not- 
>»  withftanding  that  a  great  and  dangerous  War  was  likely 
to  enfue  thereupon  betwixt  the  Grand  Signior  and  the  Rd^ 
puhlick^  becaufe  the  Venetian  General  being  not  content' 
to  have-  chafed  them  into  their  own  Ports,  did  more^ 
over  fink  their  VefTels,  and  landing  his  Men  flew  di* 
vers  of  their  Mariners,  who  had  efcaped  his  fury  at  Sea  J 
yet  after  that  a  very  honourable  Peace  was  concluded  again 
betwixt  them,  wherein  amongft  other  Things  it  was  a- 
greed,  That  it  fhould  be  lawful  for  the  Venetians^  as  of* 
ten  as  any  TurkiJJj  VefTels  did  without  their  licence  enter 
the  Gulph ^  to  feize  upon  them  by  force,  if  they  would  not 
otherwife  obey:  And  that  it  fhould  likewife  be  lawful fd!^ 
them,  fo  to  do,  within  any  Haven,  or  under  any  Fort  of 
the  Grand  Signiorh  bordering  on  any  part  of  the  Venetian 
Gulph:  So  jealous  hath  this  Republick  been  in  all  times 
to  permit  any  to  fail  the  Gulph^  that  in  the  Year  1630'i^ 
J)e  Dom.  Ma-  (as  Palatius  relates)  Mar}\  Sifter  to  the  King  of  Spainf 
risy  I.  2.  c.  6.  [^^ij^g  efpoufed  to  the  Emperor's  Son  Ferdinand^  King 
of  Hungary^  the  Spaniards  defigned  to  tranfport  heP 
/  from  Naples  in  a  Fleet  of  their  own.  The  Venetians  fuA" 
pedled  that  they  had  an  intention  hereby  to  intrench  uponj(' 
and  privily  to  undermine,  by  this  fpecious  Precedent!,' 
that  Dominion  of  the  Sea,  which  the  Signiory  had  con*^ 
tinued  inviolate  'Time  out  of  mind',  and  that  they  took  th 
Opportunity  when  Venice  was  involved  with  aWar  abroa 
and  infefted  with  the  Plague  at  home,  and  therefore  n 
in  a  condition  to  oppofe  tlieir  Progrefs.  The  Spanijh  A 
bafTador  acquainted  the  State,  that  his  Mafler's  Fie 
was  to  convoy  the  Queen  of  Hungary^  being  his  Sift6^ 
'     .  from  Naples  to  Triejie :    The  Duke  repliedg   That  h'(!# 


:hap.v.         j€)f  ti^e  flag*  .  9^ 

Vlaiefty  Ihould  not  pafs  but  in  the  Gallies  of  the  Repub- 
ick  5  the  Spaniard  repined  thereat,  pretending  that  they 
vere  ipfe<^ed  with  the  Plague  :  The  Senate  being  con- 
bited,  came  to  this  Refolution,  That  the  Sifter  of  his 
Jatho'lick  Majefly  fhould   not  be  tranfported  to  Triefte 
^y  other  way,   than  by  embarking  in  the  Venetian  Gal- 
ies   according  to  the  ufual  manner  of  the  Gulph  ;  and 
hat,  if  the  AmbaffBdor  would  acquiefce  therein,  her  Ma- 
efty  fhould  be  attended  and  ufed  with  all  that  refped  and 
deference  which  became  her  Quality  :  hut  if  Jhe  proceed- 
d  any  other  way^  the  Repuhlick  zvould  by  force  ajjert  her 
troper Rights^  and  attack  the  Spanifli  Navy  as  if  they  were  de- 
dared  Enemies^  and  in  hojiile  manner  invaded  them,    Where- 
jpon  the  Spaniard  was  compelled  to  defire  the  favour  of 
them  to  tranfport  the  Queen  in  their  Gallies,  which  Jn- 
tonio  Pifani  did  perform  with  much  State  and  Ceremony  ; 
and  the  Courtefy  was  acknowledged  by  folemn  Thanks 
from  the  Courts  of  the  Emperor,  and  of  Spain. 

XIV.  The  Maritime  Dominion  by  the  Laws  of  Eng-  Selden  Man 
land  were  always  accounted  the  Four  Seas  -,    fuch  as  are  Clauf.  I.  2.  c, 
born  thereon  are  not  Aliens^  and  to  be  within  them  is  to  ^^-  ^f*^^^^- 
be  within  the  Ligeance  of  the  King  and  Realm  of  England.   ''^^^  ^°^* 

The  Records  in  the  days  of  Edward  the  Third  and  SeU.  ibid,  c 
Henry  the  Fifth  proclaim  it,  that  thofe  Kings  and  their  27,.  Coke  4. 
Progenitors  had  ever  been  Lords  of  the  Sea  ;  and  amongft  i^P^-fi^-^^^^ 
thofe  many  great  Inftances  of  proving  the  Sovereignty  of 
the  fame,  is  that  famous  Record  of  Edward  the  Firfi  and 
Philip  the  Fair  of  prance ^  in  which  were  the  Procurators 
of  moft  Nations  bordering  upon  the  Sea,  throughout  Eu- 
rope., as  the    Genoefes^  Catalonian.^,    Almaines^  Zelanders,  iRo.Ah.^2%^ 
Hollander^.,  Friezelanders,  Danes ^  and  Norwygians^  befides  Z^-  ^* 
others  under  the  Dominion  of  the  Roman  German  Empire^ 
where  all  jointly  declare,  CMt  t\)t  iSvUlffS  Of  England, 

bp  riffijc  of  m  faiD  jKingoom  from  time  to  time, 
tolieieof  there  i-s  no  memo?taI  to  tfie  eontratp,  Ijatie 
been  (11  peaceable  poffefilort  cf  t&e  Sotiereign  Lo^a- 
Hiip  of  tlje  mm  of  England,  ana  of  t!je  3lfles  toitfj- 
\\\  tl)e  fame,  tDttlj  poitier  of  mafeing  ana  eflaWifljtnB; 
latDS,  Statutes^  ana  ^?oljibition0  of  arms,  ana 
otfetiipisotljertDife  furaiiljea  tljan  ^ercfjant-^en 
ufe  to  be,  ana  of  tafetng  furetp,  ana  affo?amo:  fafe- 
BuacD  in  al(  cafcg  toDerc  neea  fljall  require,  ana  of 



92  flDft^eflag*  Book  l: 

ra.  part  of  o^iietirto:  all  tljitms  neccffarp  fo?  tfie  mai!itntn(ng 
the  Record.   ^^^^^ ^  j^jgfji;  ^^^  cquitp,  ampnB  alf  niaimec 

people,  ag  Uidl  of  otljet  Domimong  as  tljeic  omn, 
pafoito:  tljmsl)  ttje  rata  ©eas,  ano  tlje  ©oaeceign 
(Suato  tijcccot; 

And  the  Cafe  By  which  it  plainly  appears,  That  the  Kings  of  En^- 
27  E/tz.  in    i^j^^  h^(^  l-}^gPj  l3e£j^  jj^  peaceable  pofifeflion  of  the  faid  Bor 

Con/iM's^^"  ;?2/V^/^«  by  immemorial  Prefcription,  that  the  Sovereignty 
Leonard '^*par.  belopgeth  unto  them,  not  becaufe  they  were  Domini  titn- 
72.  ufque  rip£^  when  they  had  both  England  and  Normandt 

The  reafon  of  ^^^  ^^^^  Lords  of  both  Shores ,  (for  Edward  theFirft  at  that 

there^^s"mif-  ^^^^  ^^^^  "°^  Normandy)  but  that  it  is  infeparably  appeii- 
taken  ;fcr  the  dant  and  annexed  to  the  Kingdom  of  England^  our  Kings 
right  unto  the  htmg  fuperiour  Lords  of  the  faid  Seas,  by  reafon  (as  the 
Sea  arifeth  not  y^^y  Recqrd  mentions)  of  the  faid  Kingdom  ;  and  fince 
feffion  of  die"  ^^^^  ^^^  Sovereignty  of  the  Sea  did  always  appertain  unto 
Ihores ;  for  the  Englijh  King,  not  in  any  other  Right  than  that  of  th 
the  Sea  and  X/;;^ti<?;/7  ^/ England  ;  no  Prince  or  Republick  ought  or 
\^a^c^^^'  can  doubt  the  Title  by  which  our  prefent  Claim  is  dedu- 
tories  and  by  ^^^  >  '^^^  ^^  right  of  Britannia,  that  the  fame  is  challenged, 
the  laws  of  'twas  in  that  right  the  Romans  held  it. 

England,    the 

Laftd  is  called  the  Realm,  but  the  Sea  the  Dominion;  and  as  the  lofs  of  one  Pro- 
vince doth  not  infer  that  the  Prince  mull  refign  up  the  reft  ;  fo  the  lofs  of  the 
Land  Territory  doth  not  by  Concomitancy  argue  the  lofs  of  the  adjacent  Seas.  It 
is  no  more  necefTary  that  every  Sea  Town  Ihould  command  an  hundred  MHes  at  Sia, 
than  that  each  City  fhould  command  an  hundred  Miles  by  Land,  Julius  Paucius  it 
Domin.  Maris  Jdriatici, 

The  claim  juilified  Edward  the  Third  and  his  Roj<: 

"Nolle,  though  there  are  other  reafons  regarding  the  Ldh- 

caftrian  Line,   which  yield  a  Colour  for  the  ufe  of  Pr^ri- 

cullis  in  the  Royal  Banners  of  England ;  yet  as  in  reference 

to  the  Maritime  Dominion,  Henry  the  Eighth  did  embel- 

lifh  his  Navy  Royal  therewith,  and  ^een  Elizabeth  (lamp- 

-ed  it  upon  thofe  Dollars  which  ihe  defigned  for  the  E4' 

'Anno  Domini    India  Trade,  fignifying  her  power  of  fliutting  up  the  Seas, 

1600.  ]f  f[^g   thought  fit  (as  by  a  Port-cullis)  with  the  Navj 

Royal ;  this  Dominion  of  the  Britifh  Seas  did  authenticate 

'Jnno  Domhii   the  Proclamation  of  King  James,  ordaining  the  Fhmijh  at 

^009.  London  and  Edinburgh  to  take  Licence  to  fifh:  Thisju- 

jnno  Dgmitti  fti^cd  the  like  Proclamation  by  King  Charles  I.  and  vtit- 

1636.  ranted 



:hap.V.  SDt  ti)t  ifla^.  93 

inted  by  the  Earl  of  Northumberland  in  his  Naval  Expe- 


That  Prefcription  is  valid  againft  the  Claims  of  Sove-  Will.  Fulbeck's 
»ian  Princes  cannot  be  denied,  by  any  who  regard  the  Pandeasoh\i<i 
^hly  Scripture^   Reafon^  the  pra£fice  and  tranquillity  of  the  ^^"^  cat^^' 
jffVorld :  and  that  true  it  is,  the  modern  Butch  have  pre- 
mded,  if  not  dared,  to  challenge  the  Freedom  to  fifh  in  The  King  a- 
he  Britijh  Seas,   by  Prefcription-,  but  it  is  likewife   as  gainasiry^^a 
rue  that  Prefcription  depends  not  upon  the  Corporeal  but  Byron.  Bridge 
he  Civil  PolTcfrion,  and  that  is  retained,  if  claim  be  but  ^""^^  ■^'^'  ^3> 
nade  fo  often  jjs  to  harr  the  Prefcription,  the  which  hath 
)een  always  made  evident ;  firil  by  frequent  Medals,  next 
)y  punifhing  thofe  that  refufed  it  as  Rebels,  by  guarding 
if  it,  and  laftly  by  giving  Laws  time  out  of  mind  on  it; 
vhich  evidently  proves  that  the  civil  Pofleffion  is  not  re- 
inquifhed  •,  and  our  Kings  conflantly  claiming  the  Domi- 
nion of  thq  fame,  none  t\^Q  pretending,  all  Nations  ac- 
vcowledgingit  to  be  in  them,  and  the  fame  never  quefti- 
)ned,  'till  thofe  modern  Dutch  (of  yeflerday)  arofe. 

XV.  The  Importance  of  the  Dominion  of  the  Sea  unto 
;his  Nation,  is  very  great,  for  on  that  alone  depends  our 
Security,  our  Wealth,  our  Glory  •,  from  hence  it  is  that 
England  hath  a  Right  to  all  thofe  Advantages  and  Emo- 
luments,   which  the  Venetian  Republick  draws  from  the 
Adriatick  Sea,  where  the  Ships  of  the  Grand  Signior,  of 
the  Emperor,  King  of  Spain,  and  Pope  pay  Cuftoms,  to 
maintain  thofe  Fleets,  which  give  Laws  to  them  within 
the  Gulph ;    'tis   hereby  that  the  Englifh  can  fhut  up  or 
open  thefe  Seas  for  Ships  or  Fleets  to  pafs  or  repafs  them  ; 
whereto  dueen   Elizabeth  had  fo  fpecial.a  regard,  that 
when  the  King  of  Denmark  and   the  Hanfiatick  Towns 
follicited  her  Majelly  to  permit  them  free  paflage,  they 
tranfporting  Corn  into  Spain ^  Ihe  refufed  them  ;  and  when 
a  P  rot  eft  ant  Fleet  of  Hamburgers  and  others,  had  prefumed 
to  do  {o,  riotwithftanding   her  Prohibition,    fhe   caufed  Vide  foflea  in 
\itx/Navy  Royal  to  feize,  take,  burn,    and   fpoil   them.  Cap.  of  Cu- 
when  they  were  pafled   her  Maritime  Territory,  within  S^J^J^o.  An- 
^\^t  0^  Lisbon ',  yielding  this  reafon  for  her  juftification,  ^^  1598.' 
That  they  not  only  relieved  her  Enemy  with  Provifions, 

Wt  i)ao  pjefumptuouap  wmz  ufe  of  Det  %zm^  unti}- 
cut  pbtaimns  W  Mn\  PermifOon  m  fo  uoing : 


94  lS>ttljt0aQ.  Book  I. 

'tis  from  hence  that  the  Crown  of  England  can  juftly  de- 
mand  an  account  of  any  Ship  or  Ships  occurring  in  thofe 
Seas,  what  their  Bufinefs,  and  what  their  Intentions  are  • 
and  prohibit  any  Prince  or  Republick  to  enter  there  with 
potent  Fleets,  without  pre-acquainting  his  Majelly,  and 
obtaining  his  Royal  Permiflion  ;  without  which  Domi- 
nion and  Sovereignty,  England  can  never  live  fecure  on 
fhore ;  it  being  eafy  for  any  Foreign  Fleets  to  amufe  us 
with  fpccious   pretences,  and  in  their  paflage  to  invade 
and  furprife  us.     Thus  while  the  'Turk  pretended  to  fail 
for  Malt  a  ^  he  occafionally  pofTeired  himfelf  of  C^;7^^,'irt 
Selden,  lib.  i.  the  Ifle  of  Candia.,  and  after  having  tailed  the  fweet  of 
tap.  II.         that  place,  never  forfook  it,  till  he  made  himfelf  Maftcr 
of  the  whole.     Many  fuch  Precedents  do  occur  in  Hi- 
llory  :  And  in  fear  of  fuch  Surprizal,  the  Athenians  (being 
Lords  at  Sea)    did  exclude  the  Per/tan  Monarchs  from 
fending  any  Ships  of  War  into  any  part  of  the  ^gean, 
Rbodian,     Carpathian^     and    Lydian     Seas,     and     that 
MeriGentil.  which  tends  to  the  JVefi^  towards  Athens  -,  the  like  Cau- 
Hifp.Mvocat.  tion  was  ufed  by  the  Romans  againft  Antiochus  and  the 
Mr  Secretary^  Cf?r//6^^/;?//^«j ;  and  the  T^urk  prohibits  all  Nations,  faving 
Cooic^  Letter  his  VafTals,  to  enter  the  Black  Sea  or  Pontus  Euxinus^  anj' 
to  Sir  VFill.     alfo  the  Red  Sea  -,    and  'tis   by  virtue  and  force  of  this 
^of'^^^/^prii  Right  that  the  Britijb  Nation  can  drive  on  their  own  Com- 
^^*      merce,   navigate  themfelves,   and  permit  others  fecurely 
to  trade  with  them.     'Tis  true  that  the  Dutch  have  pre- 
fumed  fome  years  (ince,  to  violate  the  fecurity  of  the  Bri* 
iifh  Seas^  by  the  attacking  the  Allies  of  £;7^/<^^/i,  not  only 
within  the  Britijb  Seas^  but  in  her  Harbours^  attempting 
to  purfue  a  French  VefTel  up  almoft  to  London^  and  haviJ 
*  The  fight    more  than  once  *  attacked  the  Spanijh  Fleets  in  her  Roads, 
of  the  Dutch   under  the  protedion  of  her  Caftles,  and  that  againft  the 
^^^^l^Jl^'  Laws  of  Nations,  ^rv^  the  Peace  of  Por(s,   in  which  for  the 
the  Doavns,     ^inie  they  feemed  to  cloud  the  Honour  of  the  Nation  -,  but 
1639.  fatisfa6lion   for  Indignities  of  that  nature,    though  Jlow^ 

Scilicet  hoc       yet  are  y?Yr^,  and  fhould  fuch  as  thofe  have  been  longer  to- 
faaum  Hoi'    lerated  beloved  Britannia  muft  become  a  proftitute,  hf 
landorum  eft    2i  Confederation  of  thofe  States,  or  take  Pafs-ports  for  her 
contra jufiiti-    Commerce  ;    but  the  Royal  Martyr'* s  Goodnefs  was  no 

am  omtiem  pro  '  v-tt  jt-/^r  j 

eerto  &  contra  longer  to  be  trod  on,  his  Heart  and  his  Caufe  were  good,^, 
reverentiajn     and  though  thofc  Unhappy  Times  (which  were  crooked 

qua  partibus  jq 


:hap.  V.  mtt^t£H^.  95 

whatfbever  feemed  flraight)    did  hinder  the  accom-  ^  teniteriis 
lilhment  of  his  entire  intention   for  Satisfamo?i -,    Y^t  ^f^,'' ^^f^''''* 
lofe  whom  the  juft  God  of  Heaven  was  pleafed  for  a  j^jj-p  ^H] 
me  to  permit  as  a  pimifhment  to  this  Nation  to  rule,  cat.  lib.  i. 
'\  not  want  in  x.\\t  fulfilling  y    for  fo  foon  as  he  was  cap..  14. 
jafcd  to  flay  the  fury  of  the  htefiine  Sword,  their  Hearts 
^^okfire  from  xho(t  flames  that  had  formerly  been  kindled 
i    that  Royal  Bfeafty  and  having  prepared  a  Fleet,    in 
-ler  to  the  treating  as  Soldiers  with  Swords  in  their 
J,  Lands,  they  were  in  the  like  manner  aflaulted  in  their 
territories  in  the  Downs    fbut   the   Dutch   found   then 
»j  hat  it  was  (though  two  for  one)  to  aflault  a  Briiifh  Lion  ^nm  Domini 
II  the  mouth  of  his  Den)  intending,  if  poffible,  to  have  ^552- 
iftroyed  the  Englifh  Power,  but  were  fruftrated  in  their 
rfign,  being  feverely  beaten  home  to  their  own  doors  ; 
id  afterwards  thofe  that  then  had  got  the  EnglifJj  Sword 
.  their  hands,  begun  to  confider  that  the  Vi^ory  mud 
\  purfued  as  a  feafon  fit  to  afiert  their  Antient  Right  and 
'vereignty  of  the  Sea,  and  then  thofe  People  thinking 
at  the  odds  before  was  not  enough  to  deftroy  the  Britifh 
ket,  they  equipt  out  a  Fleet  greater  and  far  more  nu- 
erous  than  the  Englifh,  under  the  Admirals,  Van  Trumps 
e  Wit,  the  two   Evertfons  and  R^uyter  ;   but  they  fuf- 
ted  the  fame  Fate  as   their  former,  about   fom^e  thirty  J««^  2  and  3. 
ur  of  their  Ships  on  the  Coaft  of  Flanders,  burnt  and  ta- 
!n,  and  the  reft  chafed  home  to  their  Ports  •,  and  not  About  the  8 
ng  after  followed  the  total  defeat  of  their  Naval  Forces,  ^^  ^^i-  ^^53* 
;companied  with  the  death  of  Fan  Trump  by  the  Englifh, 
ider  the  Admirals,  Blake  and  Monk,  who  had  funk  and 
red  about  thirty  more  of  their  Ships  of  War  (no  quarter 
-ing  given  till  the  end  of  the  Battle)  fix  Captains  and 
)out  a  thoufand  Men  were  taken  Prifoners,  and  about 
JC  thoufand  flain.      Of  their  Prefmnptions  fince  famongfl 
:her  things)  in  denying  the  Duty  of  the  Flag,  and  what 
jnifhment  and  check  they  have  had  for  the  fame,  to 
hat  condition  they  have  been  reduced,  and  made  to  ac- 
nowledge  that  Dominion  and  Superiority  to  that  Crown 
mcler  which  their  Anceftors  humbly  *  befought  the  ac-  *  Offered  to 
"ptance  of  the  Sovereignty  of  the  JSletherlands,  might  be  ^"^^^  £-1'^^- 
nncxed  and  proteded)  is  now  frefh  in  our  memories  ;  fo  ^'f '  '^  '""^'f 
Jgn  ana  ot  \()  great  Importance  is  this  Dominion  and  So-  hJen  une  confi- 

Vereignty  deration  fpeci* 

96  SDt  tf)t  ipiag^ 

-c-  s  ^uelacoft'  vereignty  fignified  by  the  Duty  of  the  Flag  in  th  Britijk 

JciKcie,  Ze- 

lande,  Frieze,  &  des  Villes  de  PEfcIuZt  ^  Ofiende  en  Flanders,  a'vec  les  Royaunet  dt 
'vojire  Majefte,  emporte  ^  foit  t  Empire  de  la  Grande  Mer  Oceane  ;  ^  par  confequtnt  unt 
ajjurance  ^  Felicite  perpetuelle  pour  les  SubjeSis  de  'vojire  Sereniffime  Majelle.  J(^ 
^/oau's  Supplement  to  Hollinjhsd,  An.  Dom,  1585.  Vide  Six  Walter  Ralegh ,  Uh.t, 
cap,  2.  §.  2.  ^3. 



CHAP.      VI. 

<aDf  m  Etgi^t  of  peffing  o  j  ^ct?tng  (if%i)ip^ 

I.  fhatfuch  Right  is  excepted  in  the 
Latv  of  Dominion. 

II.  Whether  the  Ships  of  Nations 
fwho  are  in  IV ar  at  the  fame  timey 
mdy  be  prejfed^  the  danger  being 

III.  Whether  this  Right  extends  to 
Ships  to  fight y  and  vo  marey  or 
gives  a  Foxver  to  trade. 

IV.  By  the  Laivs  i?/"- England  the 
King  mayfeize. 

V.  The  reafon  ivhy  fuch  a  poiver 
nvas  <vejied  in  the  Admiral. 

VI.  Thatfiich  a  Right  of  compelling 
Men  to  ferve  in  Naval  Expedi- 
tions may  be. 

VII.  0hje8ions  legal  refuted. 
VIII-  Of  the  antieni  punijhment  of 
deferters  of  the  King^s  fervice. 

IX .  Concerning  the  fe^veral  Statutes 
noiv  in  force  touching  Mariners 
and  Soldiers. 

X.  Whether  it  be  lanjjfulfor  a  pri^ 
<vate  Man  to  execute  fujlice  on 
fuch  asfiy  and  defert  the  fervice. 

XI.  Where  a  ge^ieral  CommiJ/ion  is 
gi-ven  to  Men  to  execute  Jufiice. 

XII.  Several  Cafes  touching  the  Ad- 
tniralty  and  their  furifdiSlion. 
Ships  or  Boats  found  at  Sea, 
Royal  Tify  and  Deodands  belong 
to  the  Admiralty. 

I.  rr^H  E  Civil  Law^  though  it  can  command  nothing 
Jl     which  the  Law  of  Nature  forbids,  nor  forbid  what 
it  commands  *,   neverthelefs  it   may  circumfcribe  natural 
Liberty,  and  prohibit  what  was  naturally  lawful  :    and 
alfo  by  its  force  ant  evert  that  very  Dominion,  which  is 
naturally  to  be  acquired.     Hence  it  is  that  Princes,  by 
the  Law  of  Nations,  may  acquire  a  Right  of  ufe  of  things 
that  do  belong  to  private  Pgrfons  ;  for  property  hath  noc 
(as  hath  been  faid)  fwallowed  up  all  that  Right.,  which 
rofe  from  the  common  flate  of  things  ;  becaufe  as  all  Laws 
are  to  be  conftrued  as  near  as  polTible  to  the  intention  of 
the  Makers,  fo  we  muft  confider  what  was  the  mind  of 
thofe  that  firil:  introduced  fmgular  Dominions  :  now  the  gnta,  aut 
Rules  to  conftrue  that  muft  be  near  as  pofTible  to  na-  malo  aut  ne- 
tural  equity,  and  that  in  extreme  necefiity  that  old  right '^?i^''^V^"- 
of  ufmg  things  fhould  revive,  as  if  the  things  had  remained  ^^^ 
common,  the  fame  Handing  with  the  Intereft  of  all  hu- 
nian  Conltitutions  j  and  therefore  in  the  Law  of  Domi- 

G  nion 

no  re  retenta. 

lib.  "  '^ 

98  Of  i^?effmg  ^ijtpiS  mn  ^atinm.  Book  i. 

nlon  extreme  NecefTity  feems  excepted.     Hence  it  is  that 

the  VelTels  and  Ships  of  what  nature  and  nation  ibever 

•f  F.  de  Navi-  +  that  fhould  be  found  riding  in  the  Ports  or  Havens  of 

bus  non  excuf.  any  Prince  or  State,  may  be  feized  on,  and  employed 

C./. I !.//>. 3.  upon  any  fervice  of  that  Sovereign  that  fhall  feize  the 

^ni  Pehus  on  ^^^^     beino;  but  a   harmlefs  utility,    not  diveiline  the 
the  lame  Law.  v^'rT-r  n         r% 

Owners  or  their  Interdt  or  Property. 

II.  If  a  Ship  of  the  King  of  Denmark  be  in  the  Port  of 

London^  and  the  Swede  is  in  War  with  that  Prince  •,  and 

it  happens  at  that  time  the  King  of  Britain  is  in  War  with 

the  Spaniard  •,  now  the  PoiTeflbr  is  here  prefTed  with  an; 

equal  necefTity,  and  by  the  fame  argument  is  rather  ob- 

^idni  enlm     liged  to  the  defence  of  his  own  Country  than  another, 

(inquit  Cice-    whether  by  the  Law  of  Nations  the  Ship  ought  to  be  d^- 

^rlefe'trfmento  ^^i"^^»  ^^^^  ^^^^  doubted  ;  moft  certain  it  may.  Who 
juototejl  al'  would  not  pluck  a  fhipwrackt  Man  from  his  plank,  or 
ieri  communi-  a  wounded  man  from  his  Horfe,  rather  than  fufFer  himfelf 
cet,  in  its  qua  ^q  perifh  ?  To  flight  which  is  a  fin,  and  to  preferve,  the 
^larZfami  ^ig^^ft  ^f  wifdom  :  befides,  in  the  taking  of  the  VelTd 
Tion  molejla?  the  right  is  not  taken  from  the  Owner,  but  only  the  ufe, 
I.  deOJic.  I.  which  when  the  necefTity  is  over,  there  is  a  condition  of 
reftoring  annexed  tacitly  to  fuch  a  feizure. 

And  doubtlefs  the  fame  Right  remains  to  feize  the  Ships 

cf  JVar  of  any  Nations,  as  well  as  thofe  of  private  intereft, 

the  which  may  be  employed  as  occafion  fhall  prefent : 

*  T)e  Expedi-   So  the  Grecians  feiz'd  *  on  Ships  of  all  Nations  that  were 

done  Cyn.       -j^  Ports,  by  the  advice  of  Xenophon  ;  but  in  the  time  pi-Q- 

vided  food  and  wages  to  the  Mariners. 

III.  Whether  this   Right  extends   fo  far  as  to  give 

Princes  a  power  to  feize  in  order  to  trafHck  may  be  fome 

queftion  -,  certainly  if  the  Traffick  may  be  for  fuch  Com- 

jc5^.3.»7.i6.  modities,   as  Mails,  Timber,    Tar,   Powder,    Shot,  or 

12.  other  Commodities  or  Accoutrements  of  Arms,  or  Naval 

Provifions    of  offence  neceffary  for   the  defence  of  the 

Realm,  it  may  be  done  (but  then  it  is  jufl,  freight  fhould 

C3  'Ed.  I.       be  paid)  for  what  hurt  can  it  do  me  to  let  another  have 

Mott.  77.  in    my  Boat  to  pafs  over  the  Ford,  if  he  rewards  me  ?    And 

theExche-      jf  that  be  anfwered,  the  Owners  are  at  no  prejudice,  for 

^^^^'  this  is  but  a  harmlefs  utility. 

12  £.  3.  m  I^-  jBy  t^^e  of  Blngland  there  is  no  quefllon,  but 
the  Black-  the  King  may  feize,  and  it  appears  by  very  many  antient 
Book  of  the   Records,  that  lie  might  do  it,  and  it  was  one  of  the  Arti- 

Admiralty.  .       -  •'         •  o 

Ch  AP.VL  ^t^itf(m$  %i)ip^  am  Watittm,         gg 

cles  of  Enquiry  amongft  others  ;    3Item,  fOlt  Cnqill^  SC  P-  ^^.indzr: 

jf^c%  que  font  ntrcfteecs  pour  It  ftmcz  5u  Eop,  ou  <^  >^'  ^-  ^ « • 
pour  autce  tatfoiuibie  coufeper  U&  SDfticcrs  Da  Eo}',  ^^'^:  ^^; 
oil  u  immwaU  f  nefajtfent  ratceft,  $  par  leg ,;;?  ^.^.J; 
mtllts  auaiUDiites  Ji5efjs  font  emniene?,  ^  tetamec  i?^//.  ^«»f. 
/eg  ^amm$  qui  font  oioonne?  pout  le  ftrDice  tiu 
Eop ;  $  fi  retiacent,  ?:  en  cas  que  |}Ottime  foit  eit- 
Dite  qui  la  nctoife  I  acted  en  fa  iBef  atreifee  pent:  le 
fcrWce  w  Eop,  $  ce  ce  fait  conijttie  pat  itiK  il  per- 
D?a  fa  Ji3ef  fi  I  m  pace  mi  Eop  ou  5u  Dault  anmiraf^ 
$  pout  ce  quii  a  efte  pliifleursf  foig  Cebatii  en  Mslt^ 
tcrre  pour  leg  arrefteg  ces  I^Jefg,  quant  le  Eo? 
amanoe  ©ergeantg  o'arms,  ou  autre  90miftre0  poui* 
iirreffer  I3ef0  al  oepg  5u  Eop,  $  leies  Seigneurs  De0 
jRcfs  font  m\m  ueiiant  r^flmiral,  $  aHeguent  que 
.cm  Bets  neftoient  mpe  arreOeeg,  ojconne  eftore 

Ul  tett]p0  QU  EOP  Richard  le  Primier  a  Grimfby  per 

iD5)f3  De  plufieuriS  ©eiffneuris  au  Eopalme,  que 
liinnt  Ji5efs  feront  arreeeeg  pour  feti3ice  nu  Eor, 
lae  le  Eoj>  efcrfpta  par  feg  JLettre?  ^atenteg  a  i  an-- 
niral  a  arreiler  lefg  5i3efg  plus  ou  woing  a  la  Bou- 
ante  Hu  Eop,  $  felon  ce  qutl  a  befoin,  $  ranmiral 
:lcrip?a  au  Eop  ou  au  Cljancelter  a'angleterre  it& 
lomjSDes  Befs  ainfi  arrefteeg  afiemWement  auec  ks 
lams  it$  ©eign.eurjs  $  Sgaiffres  O'lcelleg,  $  en  tel 
MS  le  Seigneur  5e  la  JSef  ne  la  ©aiftre  ne  atenujont 
m  a  ttire  que  la  iSef  neffoit  mpe  arreflee  ne  a  ce  nc 

'CtOnt  Op5>  and  that  upon  fuch  Arrefts  broken,  the 
Parties  might  be  punifhed  and  fined. 

Again,    Inquiraturji  arreftatus^  ad  ferviendum  Regi  fre- Ds  Ojfic  Jd- 
\it  arreftum^  hujufmodi  tranfgrejfor  Jiat  in  gratia  Regiafive  ^^^^^-  ^%li^ 
ddmiralli  fui  utrum  voluerint  comtnittei'e  Carceribus  manci-  j^^-'^^^  q"' 
)andum  vel  finem  facer e^  in  hac  'parte Ji  arreftum  hujufmodi 
'^a^um  manifeftum  fuerit  cognitum. 

If  the  Admiral  by  the  King's  Command  arrefts  any  The  Black- 
3hips  for  the  King's  Service,  and  he  or  his  Lieutenant  re-  Book  of  the 
:urn  and  certify  the  Arrefl:,  or  a  Lift  of  the  Ships  arretted  ^/^g  ,g^'^ 
\^to  Chancery^  no  Matter  or  Owner  of  the  Ships  fo  ar-  i^";,  '158. 
retted  fiiall    be  received  to  plead   againft  the  Return,  15 /^.  2.  f.  3; 

put  CEO  que  rasmiral  $  fon  tieutenant  font  Qc 

Jitttit^  Inquirendum  de  omnibus  Natjibus  qii£  ad  feriien- 
ditm  Domino  Regi  fuper  mari  ar reflate  fuerint,  ^  fojtea 

G  2  Domini 

100         ^tpttiiim^f^ip^iinh^avinm.  Booki. 

Domini,  pojfejfores^ftve  Magiftri  dolo  (^  fraude  afervitio  hu- 

jufmodi  fe  ftihtraxerunt  in  deceptionem  Domini  Regis,   qui 

ft  inde  poftea  indiElati  fuerint,  &  convi^i  fuper  hoc,    naves 

fua;  Domino  Regi  forisfa5f^  per  ordinationem  Domini  Regis 

Richard  Primi ;  ^  fi  Domini,  PoJfeJJores,  ve I  Magiftri  hiu 

jufmodi  inde  coram  Domino  Rege  Q  Cancellario  fuo  per  alt- 

quas  allegationes  fe  aut  naves  htijufmodi  excufare  voluerint,  fi 

jidmir  alius  vel  locu?n  tenentes  fui  per  Liter  as  fuas  Patentes  de 

cirreflo  hujufmodi  fa5io  fidem  fecerint  pleniorem^  Domini,  Pof- 

fejjores,  aut  Magiftri  pradi^i  nullo  modo  audiri  deheant,  feu 

eis  fides  quovis  modo  adhiberi,  eo  quod  Adrdrallus  &  locum 

tenentes  fui  funt  derecor do. 

And  if  the  Ship  fo  arrefled  break  the  Arreft,  and 
Croke\  Arg.  the  Mafler  or  Owner  thereof  be  indided  and  convicled 
in  na7npden\  BeiJaitt  I'SOtllltSll  by  the  Oath  of  twelve  men,  the  Ship 
Cafe,  fol.  79,  fhall  be  confifcate  to  the  King,  which  power  the  Genml 
F/V^^State  rnaintains  in  all  places  where  he  has  power,  and  the  fame 
Trials, Vol.  I.  feems  to  be  provided  for  in  the  latter  Claufe  of  \^R,  2. 
Ca.  3.  i- 

IV.  By  King  CtljelteBj  his  Bifhops  and  ISloUes  in  the 
Spelmanni  General  Council  of  dEltfj^UI,  Anno  1009.  for  the  fetting 
Concil,  520,  out  a  Fleet  every  Year,  and  the  punifhment  of  thofe  who 
521-  hurt  or  fpoiled  any  Ship,  or  deferted  the  Service,  efped- 

ally  if  the  King  was  prefent  in  the  Expedition,  amongft 
others  it  was  ena6led,  6"/  quis  Navem  in  Reipub.  Expe- 
ditionem  dejtgnatam  vitiaverit^  damnum  integre  rejlituito  ^ 
Pacem  Regis  violatam  compenfato  -,  Jl  verb  ita  prorfus  cor- 
ruperit,  tU  deinceps  nihili  habeatur,  plenam  luito  injuriam  li 
iJfam  praterea  Majefiatem.     So  Sir  Henry  Spelman^s  Ver- 
fion  out  of  the  Saxon  Copy  renders  it,  but  the   antient 
Copy  hath  it  more  largely. 
Spelmnn.  528.       JSfaves  per  fingulcs  annos  ob  patriae  defenftonem  Cf?  munittc- 
expediiio  Na-   j2em  praparentur,  poflque  SacrofanUum  Pafcha  cum  cun^ts 
•^^^''-  utenfilibus  competentibus  fimul  congregentur  \  qua  igitur  etiatn 

poena  digni  funt,  qui  Navium  detrimentum  in  aliquibusper- 
ficiunt  ?  No  turn  effe  cupimus,  quicunque  aliquam  ex  Naviks 
per  quampiam  inertiam  vel  incuriam,  vel  negligentiam  corn' 
pern  \  d?  tamen  recuperabilis  fit  \  is  Navis  corruptelam 'vd 
fra^uram  ejufdem  perfolidamprius  recuperit,  Regique  deindSi 
ea  qua  pro  ejufdem  munitionis  froBurafibimet  pertinent^  rit6 


Ch  ap.  VI.  £)f  is^^elTmg  ^i)ip0  ana  ^avimv§.        i  o  i 

Mod  certain  it  is,  that  the  Kings  of  Eitglajid  have  in  all 
Ages,  by  their  IVrits  and  Patents^  commanded  not  only 
the  Admiral^  but  the  Wardens  of  the  Cinque- P oris  and 
others,    to  arreft  and  provide  Ships  of  War,  and  other 
VefTels,  and  imprefs  and  provide  Mafters  of  Ships,  Sea- 
men, Mariners,   and  all  other  neceffary  Tackle,  Anns, 
^land  Provifions  for  Ships,  for  the  defence  of  the  Sea  and  Rot.Scotiof 
ii  the  Realm  againfl  foreign  Enemies,  or  for  tranfporting  ^2\oij-^'^ 
''of  Armies  paying  their  Freight  (if  not  bound  thereto  by  then  to  34. 
Ij  tenure)  as  well  as  to  eledl  and  provide  all  forts  of  Soldiers^  htus  ^  dorf. 
Carpenters,    and  other  Officers  to  be  affiitants  in  their  ^028. 
feveral  Expeditions. 

But  Filhermen  or  Mariners  preflfed  for  the  Service,  are  ^    ^^y'/^^^ 
not  to  be  employed  as  Soldiers,  but  only  as  Mariners  ;  \n\car,\! 
anlefs  it  be  in  cafes  of  great  necelTity,  or  bound  thereunto  c,  5. 
\  by  Tenure,  Cuftom,  or  Covenant. 

V.  Thereafon  why  the  Admirals  hzd  fuch. power  given  ^°"^^  of  Ad- 
them,  was  becaufe  they  being  fometimes  called  Capitanei^  SedbvlT^' 
and  Gubernatores  Flotarum^    they  had  tlit  ordering    and 
governing  of  the  Ships  of  War,  and  the  raifing  and  fitting 

up  fuch  Ships  for  the  Navies,  as  they  thought  fit  ♦,  other 
times  called  Cuftodes  Maritimarum  partitm.,  their  duty  be- 
ing to  provide  all  Naval  Provifions,  as  well  to  fupply  the 
King's  Navies  occafions,  as  to  gratify  any  other  of  the 
King's  Friends,   when  diftrefs  fliould  conftrain  them  to 
touch  in  his  Ports,  that  his  Subje6l:s  might  receive  the  Spelmanh 
like  retaliation  again  ;    they  were  called  Capitanei  Nauta-  GlolT.  intltl 
rum  i^  Marinelloruniy    as  in  reference  to  the  deciding  all  Lambert  Ar^ 
differences  amongfl  thofe  in  the  King's  Service,  and  pu-  cheion  tit.  Ad- 
nifhing  of  fuch  as  tranfgreffed  ♦,    and  as  the   place  was  miraL 
great,  fo  the  power  was  large,    efpecially  in  all  things 
belonging  to  the  Navy-Royal  •,  in  which  they  had  the  fu- 
preme  rule  and  government  in  all  things  belonging  to  it. 
He  fate  formerly  in  the  King's  Houfe,  and  there  kept  his 
Court,    as  the  French   Admirals  do  at  this  day  at   the 
Marhle-Tahk^  in  the  King's  Houfe  at  Paris. 

VI.  And  although  there  feems  no  queflion  but  the  King 

may  prefs  Ships,  yet  there  have  been  thofe  who  feem  to  ^ 

j  doubt,  if  not  to  queftion,  whether  he  may  prefs  Men  to 
!  ferve  •,  for  my  own  part  I  think  he  may,  my  Reafons  are 
:|  thefe  :  It  is  lawful  for  every  Man  to  addid:  and  yield  up 

G  3  hinifcU' 

102  S;f}&?efftnsg)^tpjsanb2iparmer0,  Booki. 

himfelf  to  whom  he  pleafeth,  as  appears  both  out  of  the 
Exodus  i\.  6.  Hebrew  Law  and  Roman  Law  *,  why  then  may  not  any 
jvji.  de  Jure  People,  behig  at  their  own  difpofe,  give  up  themfelves 
prjon.^Servi  to  their  Prince  or  Sovereign,  fo  as  to  transfer  the  right 
?/7l  ^^  commanding  their  aid  and  help,  as  often  as  need  fhall 

**'*'*  require  (it  is  not  here  inquired  what  may  be  prefumed  in 
a  doubtful  cafe,  but  what  may  be  done  in  point  of  right) 
rnoft  certain  fuch  a  power  may  well  be,  and  that  ground- 
ed on  great  Reafon  ;  as  if  the  Commonwealth  fhould 
happen  to  be  invaded  by  fuch  a  one  as  feeks  not  only  the 
fubverfion  of  the  Government,  but  the  deftrudlion  of  the 
People,  and  they  can  find  no  other  way  to  preferve 
themfelves,  but  that  the  fupreme  Power  fhould  be  vefted 
with  fuch  a  Prerogative,  as  to  enforce  or  prefs  the  Inha- 
bitants to  ferve  in  Arms  in  the  Defence  of  the  fame,  and 
the  contempt  of  which  to  punilh  ;  or  if  they  fhould  be 
be  opprefled  with  want,  and  that  fupplies  of  Provifions 
can  no  ways  be  had,  but  by  compelling  another  by  force 
to  exhibit  the  common  OfBces  of  humanity  to  a  Nation 
in  whofe  Territories  a  Famine  rages,  that  the  Inhabitants 
fhould  on  fuch  extraordinary  Occafions  be  compelled  by 
force  to  ferve  in  Arms. 

And  this  Dominion  may  be  obtained  feveral  v/ays,  ei- 
ther by  a  voluntary  Refignation  to  a  Conqueror,  as  they 
of  Capua  to  the  Romans^  Qur  Land^  the  Temples  of  our 
Gadsy  all  Divine  and  Humane  things  we  yield  up  unto  your 
hands ^  O ye  Confer ipt  Fathers,  Again,  Freedom  may  be 
granted  to  all  by  a  Conqueror,  except  Mariners,  which 
ihould  in  Cafes  of  neceffity  be  excepted  \  or  that  fome 
Prince,  who  will  not  fufFer  any  Mariner  to  go  out  of  his 
Pominions,  without  fubjecling  themfelves  to  fuch  a  rea- 
fon able  command,  befides  the  Majority  of  Nations  on 
fuch  grounds  may  abdicate  from  a  part  of  them  the  en^ 
tire  Freedom  of  that  Member. 

Nor  are  there  examples  of  this  kind  wanting  ;  the  Ger» 

mans  are  every  one  Mailer  of  his  own  Houfe,  but  are  aK 

moft  on  every  occafion  fubjed  to  their  Lords^  efpecially 

Coh'i.hflit.   in  their  Goods,    Th&  Irifh  Cofherers.,   vt^hich  were  repren- 

/;/.  358.         dinations,  when  the  Chief  Lord  and  his  Retinue  came  to 

his  Tenant's  Houfe,  they  fed  upon  his  Provifions  till  they 

were  fpent,  all  being  folely  at  their  Devotion.    And  as  to 



Chap.  VI.  ©f  p^cITtns  ^Up&  attB  ^atimvg.        103 

the  Sea,  the  King  of  Britain  may  at  this  day  reftrain  Mer- 
chants or  Mariners  to  pafs  out  of  the  Reahn,  without  Li-  z.E.i.Memh. 
cence  J    and   the  various   tenures    that    are   introduced,  ^  8.  i^/-/.  p^z, 
which  is  prefumed  were  fince  the  Conqueft^  were  no  other  ^'^f 'J''"'^^* 
\\  but  the  Will  of  the  Conqueror  -,  for  the  right  is  not  mea-  ^^  i   num' 
'ijfured  by  the  excellency  of  this  or  that  form,    but  by  the  44.  Ro.  Pat, 
|j  Will.  '7.  H.  6.  Ra. 

As  to  the  impreffing  of  Seamen,    it  is  flrange  that  ^/^JtheCaf 
its  Lawfulnefs  fhould  ever  be  called  in  Queftion  by  any  ofBatef,  in 
II  Perfon,  who  has  read  our  Hiftory,  or  our  Statute- Book.  Lane's  Re- 
II  The  Crown  has  been  in  Poffefrion  of  it  from  Time  im-  ports,/©/.  4. 
1'  memorial  :  And  if  a  new  Race  of  People  were  this  Day  /  ^{"r^^^^^* 
Ijtofpring  out  of  the  Earth  to  poiTefs  this  Ifland  •,    if  we    ' 
^  may  at  the  fame  Time  {iippofe  them  to  unite  under  one 
il  Civil  Polity,  and  to  be  conufant  of  the  Necefilty  of  NavaF 
1:  Strength  for  their  Defence  ;    the  Power  of  imprefling 
them  for  the  Sea-Service  would  be  implied  in  the  executive 
Part  of  their  Government,  let  it's  Conftitution  be  what  it 
might ;  viz,  limited  Monarchy,  Ariftocracy,   or  Demo- 
i  cracy,  or  ^ny  compound   of  them,    or  fome  of  them. 
But,  as  was  hinted  above,  our  Legiflature  has  frequently 
maintained  this  Power,  as  undoubted  Law.     See  2.  Ann, 
ch.  6.  concerning  Protections  to  be  granted  to  Appren- 
tices to  be  bound  to  the  Sea-Service.     But  more  explicite 
is  a  former  Statute,  viz.  2.  and  3.  P.  &  M.  cJp.  16.  by 
which  Watermen  on  the  Thames  who  abfcond  in  PrefUng- 
Time,  and  then  return  to  row,  are  made  liable  to  Im- 
prifonment  for  two  Weeks,  and  to  be  banifhed  to  row 
upon  the  River  by  the  Space  of  a  Year  and  a  Day.     See 
alfo  2.  R.  2.  ch,  4.  and  5.  Eliz,  ch.  5.  fe3i.  41,  43. 

VII.  And  though  it  hath  been  conceived  by  fome,  that 
the  King  cannot  prefs  Men  to  ferve  in  his  Wars,  giving  1  hfi.  7K  ^. 
their  Reafon,  that  of  old  he  was  to  be  ferved  either  by 
thofe  that  held  by  tenure,  thofe  that  covenanted  by  In- 
denture to  provide  Men,  or  thofe  who  contradled  with 
the  King's  Officers  for  Wages  and  entered  into  Pay,  or 
thofe  that  were  in  Prifon  for  the  King's  Debts  ;  but  that 
only  extended  to  thofe  Wars  that  were  by  Land  :  not  or^ 
word  in  all  thofe  A6ls,  or  Mufter  Rolls^  relating  in  th& 
ieaft  to  Mariners  •,  and  yet  what  vail  Fleets  were  in 
ihofe  Pays  ?  But  on  the  other  Hand  it  hath  been  always 

G  4  accuilomed 


J04       flDf  #?em'itg  ^f)ip0  ann  mavinm.  Book 

aceuftomed  to  prefs  fuch  fort  of  Men  for  the  Naval  Ex- 
peditions.    The  ancient  Records  that  mention  fuch  Per- 
fons  fubjefl  to  be  prefs'd  by  Law  is  that  of  29  £.  3.  com» 
*  2.  Jpr.  49  monly  called  *  Tbe  Inqui/ilicn  of  ^eenhorough^   wherein 
j:.  3.  in  the   it  was  exprefsly  in  charge  amongft  others,  to  enquire  of 
^^?^\  ^  v^-  ^^^^^  Mariners  that  were  preflfed  for  the  King's  Service, 
rally ^'12,  %^]  ^^^  dcfertcd  the  fame  :  So  likewife  by  thofe  other  Articles 
34.  J,t.  and  tranflated  by  Roughton^  it  is  in  exprefs  charge  to  the  Jury 
fol.  62.  Art.  to  prefent  thofe  that  being  preft  to  ferve  brake  the  King*s 
'°'  '  Arrefl,  in  order  to  their  Punifliment ;  and  in  thofe  days- 

it^  was  efleemed  ah  high  offence  :  and  the  Oath  which  the 
Jwj  then  took  being  impanelled,  was  this  : 

Cljig  l)rre  fee  mp  lo?a  tJ)e  ammtal,  tfiat  31  Jona, 

than  Nafli  fi)ail  WW  ailO  ttiUp  ZmMZ  fO?  OUt  1L0?5 

tu  lUniT,  anD  toelJ  aiiD  tnili>  at  tiM  tixm  tbert  fecue 

at  t{j^0  Coutt  of  tlj'  SBmicaltp,  pjefcnt  as  mccfj^  agj 

ijaDc  acfeuoM£c&5  oi  map  Jja'oe  bp  lufa^mation  of  en? 

of  tttp  jf elloius,  cf  all  manet  aiticieg  o?  €(ixun^ 

ftanceg  t&at  toiicijeu  tlje  Court  ot  tlje  anmicatc  anji 

ILatu  of  tlje  ©ca,  tse  tufiiclj  fuall  be  grate  to  me  at^ 

tljig  time,  aitu  tfietenpoit  ftooin  or  cljarffeo,  anti 

of  alt  ot&er  tfiat  map  renetti  in  mp  rninD,  arin  in 

Ojall  fo?  notljlns  lette,  tljat  is  fo?  to  rap,  fo?  jfran- 

tljiTe,  lojsfljip,  j^inrctien,  ailtence,  jFrienaSjip,  loDe, 

|)atret!5  eiisp,  (enemitee,  fo?  njea  of  lof!  of  ©oon* 

The  Black  mz^  fo?  itOH  otber  cafe  t^jat  31  fljall  foe  aoe,  tfie 

Book  of  the  J^ingis  Coimfeilg,  mp  felloajs,  mine  oton,  toil! anD 

Admiralty,    frulp  ijelE  initljout  ftaun  02  maiengpn,  fa  ®m  me 

/^^-  *7.       Ijelu  at  tfte  ijolp  come,  ano  ftp  tw  Boofe. 

Lamb  zV//^/-  VIII.  And  as  the  enquiry  was  ftri6t,  fo  was  the  punifli- 
Leg.  Edo'vardi  Hicnt  very  great  :  Ilem,  qui  fugiet  a  Domino  vel  focio  fuo 
139.  pro  timiditate  belli  vel mortis  in  condu5fione  Heretochii fuiin 

?3.C2r.  2.  cap,  expcdilione  ?mvali  vel  terrfflri^  perdat  omne  quod  fuum  efl,  (i 
^'     ^*  ^7*     fuam  ipjius  vitam^  mantis  mitt  at  Dominus  ad  t  err  am  quam  ei 
antea  dederat. 

IX.  In  the  Service  of  the  King  two  forts  of  perfoii^ 
were  always  capacitated  to  attend  the  Navy-Royal  m  their 
Expeditions,  the  one  a  Salt-water  Land-Soldier,  the  other 
a' compleat  Mariner  or  Sailer  :  It  was  a  doubt,  whether 
fuch  a  Soldier,  departing  from  the  Service,  were  fubjeft 
to  any  other  punifliment  than  that  of  Martial  La w^h'ich 
c;in  at  no  time  be  executed  in  England,  but  when  thrlCing's 
Standard  is  in  the  Field  i  thereupon  it  was  provided,  7M' 

^  flDfpteflfMtg^lJtlpgJattlifll^attttetg^     105 

f  any  Soldier  being  no  Captain  imjnediately  retained  with  7^-7  (^p*  i  • 
\\he  Kingy  which /ball  be  in  wages  and  retained^  or  take  any  §•  ^' 
^^)reft  to  ferve  the  King  upon  the  Sea^  or  upon  the  Land  be-    ^°'    ^''*  '^'* 
'^'  ond  the  Sea^  depart  out  cf  the  King's  fervice  without  licence 
''  ^fhis  Captain^  that  jiich  departing  be  taken ^  deemed^  and  ad- 
'dged  Felony.     And  that  all  the  Jujiices  in  every  Shire  of  ^H.  2.cap.^: 
,,n  gland,  where  any  fuch  Offender  be  taken  ^  have  power  to  §-  2. 
\muire  of  the  [aid  offences  ^  and  the  fame  to  hear  and  deter  ^ 

Inine  as  they  do  and  may  do  of  Felony^  &c.  expreffed  in  the 
King^s  Commiffwn  to  them  made^  as  though  the  fame  offences 
\  were  done  in  the  fame  Shire,  And  alfo  that  the  departing  of 
^uch  Soldiers^  and  alfo  their  Retainers^  if  it  be  traverfed^ 
he  tried  in  the  fame  Shire  where  they  are  for  fuch  a  Caufe  ar^ 
nfted  and  arraigned.  The  Juftices  have  here  a  concurrent 
power  to  enquire  and  try,  but  it  does  not  fliut  out  the  So- 
vereign Courts,  or  hinder  but  the  King  may  try  them 
upon  a  Commiffion  of  Oyer  and  Terminer,  or  Goal-de- 
livery. It  was  a  doubt  conceived  by  fome  of  the  late 
Judges,  if  a  Man  had  run  from  his  Colours  at  Ply  mouthy 
and  afterwards  was  taken  in  Middlefe^^  and  committed  to 
Newgate,  whether  after  a  Bill  is  found  in  Middlefex,  the 
Juftices  of  Goal-delivery  for  Newgate  could  try  him  *,  but 
it  was  ruled  more  than  once  by  the  greater  number  of  the 
Judges,  they  might ;  and  fo  have  the  Precedents  been 
always  fince  the  making  of  this  Statute,  and  upon  the  like 
Reafon,  that  a  Man  that  takes  a  fecond  Wife,  hath  by  the 
Statute  the  fame  diredlions  to  be  tried  in  the  fame  Shire 
where  he  is  taken  ;  yet  if  taken  in  Middlefex,  was  always 
tried  at  the  Old-Baily  in  London. 

Thefe  Statutes  were  made,  becaufe  the  Statute  of  1 8  //. 
6.  cap,  19.  was  looked  upon  not  to  be  fufficient,    for  that 
Adt  had  reference  only  to  the  ancient  Tenures,  and  thofe 
that  covenanted  with  the  King  to  provide  Soldiers  •,  where- 
upon a  queftion  afterwards  arifmg,  whether  feveral  who 
having  then  taken  preft  Money  to  ferve  the  §ueen  againft  ^^  eUz. 
the  Rebels  in  Ireland,,  and  had  departed  and  withdrawn 
themfelves  from  the  Service,  fhould  be  within  thofe  Sta- 
tutes, in  regard  fome  doubt  feemed  to  arife  on  the  fame  •,  Coke  6.  part,  v/as  refolved  by  all  the  Judges  of  England,,   that/^^-^/* 
thofe  two  Statutes  of  7  H,  7.  Cap.  i.  and  3  H,  8.  Cap,  5.  ^^^^^  ^^^^^^ 
are  all  one  in  efFedl,  and  were  perpetual  Adls  :  the  great  ed  in  his  A- 
doubt  and  queftion^   whether  the  Statute  cf  18H.  6.  bridgment. 

io6       0f  Pzeflftng  ^f^ip$  anD  ^avimvs.  Book i. 

C^/).  19.  did  extend  to  Mariners  and  Gunners  fervingonthe 
Seas,  and  taking  Wages  of  the  King,  was  in  Parliament 
not  long  before  cleared  in  thefe  Words :  That  tbefaidSia- 
tute  made  in  the  eighteenth  Year  of  the  Reign  of  H.  6.  in  al 
pains ^  forfeitures^  and  other  things^  did^  doth^  and  bereaf- 
ter  fhall  extend  as  well  to  all  and  every  Mariner  and  Gun- 
ner, having  taken,  or  who  hereafter  fJjall  take  preji  or  wa^es 
ioferve  the  ^een's  Majefiy,  her  Heirs  and  Succejfors,  to  all 
intents  and  purpofes^  as  the  fame  did,  or  doth  unto  Soldiers^ 
any  diverfities  of  opinion^  doubt,  matter,  or  thing  to  the  contrary 
thereof  notwithflanding  :  But  now  Mariners  deferting  the 
Sea-fervice are  particularly  within  the  Provifion  of  i^Csr. 
Article  17.  2.  Cap,  9.  which  hath  made  the  Offence  Death  *,  but  the 
Trial  is  by  a  Court  Martial.  . 

And  Land-Soldiers,  though  in  Time  of  Peace,  are  like- 
wife  within  the  Statute  of  7  Hen.  7.  Cap.  i.  and  3  Hen.  8. 
'  Cap,  5.  if  they  take  any  preft  Money  to  ferve  the  King 
upon  the  Sea,  or  upon  the  Land,  or  beyond  the  Sea,  and 
ihall  defert  the  Service  -,  but  that  is  inquirable  according 
to  the  Courfe  of  the  Common-Law,  where  if  the  party 
Ihall  depart  without  Licence,  he  fliall  fuffer  Death,  with- 
out benefit  of  the  Clergy. 
Nonfotis  duct-      X-  If  f^ch  Perfons  (hall  fo  defert  the  Service,  it  hath 
bus  alii/quepo  been  a  Queftion,  whether  a  private  Perfon,  under  the  fame 
tentibus  inna-  obedience  meeting  with  fuch  a  Deferter,  might  not  put 

%f^^o^'  i^lTm  ^^^  ^^  ^^^^^  '  ^^  ^^^^  ^^"  conceived  that  he  might,  and 
Jgendi  propcfi-  the  a6l  is  lawful,  and  the  party  that  flays  him  hath  a  true 
turn, fed cuique  Right  before  God,  as  impunity  before  Men:  But  that  is 
^volenti  ^  licet  j-q  ]qq  undcrftood  partly  by  the  Words,  and  partly  by  the 
^  homjium  eft  j^^j-^gj.  ^f  j-j^g  L^^  .  p^j.  if  ^^  L^w  gives  indulgence  to 

J^eiplltc^'^^  Paflion,  it  takes  away  human  Punifhment,  and  not  the 
malts  comma-  Fault;  as  in  cafe  an  Husband  kills  an  Adulterous  Wife  or 
rj€ri,i^  puhli-  j-j^e  Adulterer  *  in  the  Ad  -,  moft  certain  it  is  a  Provoca- 
^on!i!^!iLs  ^^^^^  ^^  ^^^  \(ig\i^^  nature,  and  will  juftify  the  Slayer; 
■promoSr?.  "^  But  if  the  Law  refpedl  the  Danger  of  future  Evil,  by  dc^ 
Fide  Grotium  lay  of  Punifhment,  it  is  conceived  to  grant  right  and  pub- 
/.  2.  c.  10.      Y\c\!*  power  to  a  private  Man  :  fo  that  he  is  not  then  in  the 

2^t^Z  ^^-^^y  «f  -  P"--'^  Man. 

Clergy,  and  fo  ^^ 

it   was    ruPd 

by  all  the  Judges  m  B.  R.  M.  23  Car.  2.  in  the  Cafe  of  one found  fpecially  at 

Surrey  Aflizes  before  Mr  Juftice  Tnvi/den,  who  flew  the  Adulterer  in  the  very  A6t.  Fi^ 
xAuguft.  dg  Ciiit.  Dei  citatum.  C,  quiJunqus  caufa.  23.  ja.  8. 

;h  AP.  VI.  ^f  pitmns  ^¥V$  an^  ^avimvg.        107 

And  upon  that  very  Reafon  Queen  Elizabeth  denied  the  ^«.  25  Elix 
onftituting  of  a  Conjiable,  for  the  Trial  of  Sir  Francis  ^"^  -t.;//.74.^. 
^hrake,  who  ftruck  off  the  Head  of  Doughty,  in  fartibus 
^  -nnfmarinis. 

XL  Hence  it  is  that  every  Man  hath  a  Licence  given 
m  to  oppofe  force  againft  plundering,  and  pillaging 
loldiers :  and  the  next  the  fubfequent  Law  about  Defer- 
1  L-rs  faith,  Let  all  men  know  they  have  a  power  given  them  Cod.  Jujlln, 
%  ijrainft  publick.  Robbers  and  Beferters  that  run  from  their  Co-  tit-  quando  li- 
\!iurs,  and  all  are  Minijiers  of  Revenge  Jar  the  quiet  of  all-,  ceatumcm^ue. 
k  0  this  purpofe  is  that  of  Tertullian.,  againft  Tray  tors  or  pub- 
ick  Enemies  every  Man  is  a  Soldier  :    And  herein  differs 
he  right  of  killing  of  Exiles  and  Outlaws,  or  thofe  whom 
hey  call  Banditoes^  from  thofe  kind  of  Laws-,  becaufe  there  It  was  in  force 
)roceeds  a  fpecial  Sentence,  the  Judgment  of  Banilliment  in  England tiW 
)r  Outlawry  being  promulgated  ;   but  here  a  general  E-  ^f^the^Re^gn^ 
iid,  the  Fact  being  evident,  obtains  the  force  of  a  Judg-  oi  Ed.  3. 
■nent  or  Sentence  pronounced  :  the  Judgment  of  the  lat-  Co.  Liu.  128. 
:er  muft  be  according  to  the  Civil  Law^  which  yet  re-  ^-  *^^*i-{* 
nains  flill   in  force,  as  to  the  Trial  of  fuch  Deferters ;  1/^,.^^//^] 
vhich  Impunity  for  fuch  killing  feems  allowed  of  at  this  ^.'j.  4. 
day  by  that  Law. 

XII.  Cafes  relating  to  the  Jurifdiiflion  of  the  Admi- 
ralty as  to  Matters  fueable  there,  or  at  the  Common  Law. 

The  Trial  fhall  be  vyhere  the  Original  Contract  is  made,  Tryal  cohere 
which  if  in  England^  tho'  the  fubfequent  Matter  to  be  done  the  Original 
be  upon  the  Sea,  the  Trial  fhall  be  at  the  Common;  Law.  ^fj^^^^^  «• 
But  if  the  contrad,  and  what  is  to  be  done  all  of  it  is  be-  '^'-^"* 
yond  Sea,  it  cannot  be  tried  at  Law  here,  but  in  the  Ad- 
miralty ;  but  if  part  be  to  be  done  here  and  part  beyond 
Sea,  fo  as  it  is  mixed,  then  it  fhall  be  tried  at  Law.    As 
an  Adlion  upon  the  Cafe  upon  a  Policy  of  AfTurance  made 
at  London^  that  a  Ship  fhall  fail  from  Melcomb  Regis  in 
the  County  of  Dcrfet  to  Abville  in  France^   fafely,  i^c. 
And  the  Plaintiff  declared  that  the  Ship  in  failing  towards 
Ahville^  viz.  in  the  River  of  Soame  in  France^  was  arrefl- 
ed  by  the  King  of  France.,  Sec.  and  the  IfTue  was  whether 
the  Ship  was  fo  arrefled  or  not ;   the  Trial  was  by  Ni/i 
Prius  in  London,  and  refolved  to  be  well  brought,  though 
'twas  objeded  that  this  IfTue  arifmg  merely  from  a  Place 
out  of  the  Realm,  could  not  be  tried  at  Law,  for  the  Af- 
fumpfit  being  at  London  was  the  crround  and  foundation 



io8       flDf  PttMn^ ^l^ipsf  ana  ^avintvs.  b o o k  i. 

of  the  A6lion,  and  therefore  Ihall  be  tried  here,  for  other, 
wife  it  could  not  be  tried  at  all.  Cited  in  Dowdale's  Caft 
6  Rep,  47.  ^.  GodhoU  ^6.  and  204. 

And  fo  if  the  Con  trad  be  made  at  Land,  tho'  beyond 
Sea,  the  Trial  fhall  be  at  Law,  tho'  what  is  to  be  done, 
be  all  of  it  beyond  Sea,  by  laying  the  Contraifl  made  at  a 
Place  in  England^  as  in  Bourdeaiix  apud  IJlingtvn  in  Cm, 
Middle/ex.     So  is  the  Cafe  of  Slaney  and  Clohery  againft 
Cotton^  where  the  PlantifF  fued  the  Defendant  in  the  Ai- 
mralty  Court  upon  a  Promife  made  in  Barbary^  to  fail 
from  Sirborona  in  Barbary  to  Rkumpta  in  Brazil,  &c, 
upon  fuggeftion  that  the  Contract  was  made  in  London-s 
Prohibition  was  granted  :  for,  by  J  ones,  the  performance  of 
the  confideration  does  not  give  the  A6lion  without  the 
Contra6t,  and  this  was  made  at  Land^  tho'  beyond  the 
Seas,  which  may  be  fuppofed  to  be  done  in  a  place  in 
England.  2.  Rolls  Rep.  486.    See  Tucker  2iV\d  Cuff's  Cafe  in 
the  fame  Book  492.  and  497.  and  2  Brow.  10.  11. 
Matters  be-        A  Contract  was  made  at  Newcaftle  that  a  Ship  Ihould 
yond  Sea  not  ^^jj  ^^^^  7'armouth  to  Amfterdanu  Debt  was  brought  upon 
ljjfgj.JQj.CQjjjf,  this  Contradl,  in  the  Court  of  iVi?ze?f(^/^ ;   adjudged,  that 
the  Adtion  would  not  lie  there,  being  a  limitted  Jurif. 
didion,  which  fhall  not  have  conufance  of  any  matters 
done  in  partibus  tranfmarinis,  but  only  the  Courts  at  Wefi- 
minfter,    March's  Rep.  ^. 
Pr^emmlre (or      If  onc  libel  in  the  Court  of  Admiralty  for  a  thing 
fuing  in  the    donc  Upon  the  Land,  and  it  appeareth  upon  the  Libel, 
Admiralty,      that  the  thing  was  done  upon  the  Land,  and  they  not- 
withftanding  that  hold  Plea  of  it,  a  Pr^munire  lyeth  up- 
on it ;  but  if  the  fame  do  not  appear  within  the  Libel, 
then  it  is  not  within  the  ig  of  i^.  2.  c.  5.  and  15  of  R, 
2.  f.  3.  but  a  Prohibition  fhall  only  iffue,   2  Leon.  183. 
Admiralty  The  Admiralty  hath  J urifdidion  of  i^/^/2;^;;?.  'Trefdian 

hath  Jurifdic-  againft  Jones  2.  Keeble  ^61, 
tion  of  F/ot-       ^  j^.^^^j^  5l^ip  ^^s  broken  by  a  great  Tempeft  in  a 

Superfedeas  to  ^^^^^  ^^  ^^^  Sea,  Infra  Corpus  Comitatus  de  Dorfet  -,  the 

the  Admiral-   Sailors  upon  pretence  that  the  Goods  in    the  Ship  were 

ty*  bona  peritura,  procured  a  Comm.ifTion  of  Sale  out  of  the 

Admiralty-Court  to  {t\\  them  ;   and  the  true  Owners  to 

^  prevent  fuch  Sale,  brought  a  Super fedeas  ;  and  upon  fhe^- 

ing  the  Libel  to  the  Court,  a  Prohibition  was  granted. 

(i.^  Becaufe  the  Caufe  of  Ad;iori  accrvied  infra  Corpus 


-]j  s>t  mt^iH  ^¥v^  attt>  ^avintm        109 

:omitaius.     (2.)  Becaufe  the  Sale  of  the  Goods  was  good, 

s  bona  peritura.     Ctilmer  ag2iini\:  Brand.  2  Sid,  81. 
One  having  taken  a  Ship  as  Prize  which  had  bona  peri-  Unjuft  Sen* 
ra  entred  into  a  Recognizance  with  fureties  before  the  ^^^^^.  ^^  ^^® 
idges  delegate  to  bring  the  Money  raifed  by  Sale  of  the  ^hweM^y 

;oods  in  the  Admiralty- Court  before  fuch  a  day,   if  they  have  original 
1  ipon  a  Plaint  there  depending  did  not  adjudge  the  Ship  Conufance  is 

\nd  Goods  to  be  lawful  Prize,  which  they  adjudged  law-  "°  S^M^^^°^ 
t     r  1         •  •     J     1      r^  1        a  Prohibition, 

ul  Prize ;  and  after  at  another  time  cited  the  Owner  be- 

bre  the  Judges  of  the  Admiralty,  and  for  his  not  coming 
md  bringing  the  Money  at  the  day,  they  threatned  to  fue 
fj  Execution  againft  the  Bail  or  Sureties  who  were  Mer- 
:hants  of  London^  Proliibition  was  prayed  ;  for  by  their 
nrft  Judgment  or  Sentence,  their  Recognizance  was  dif- 
charged,  and  they  ought  not  by  Colour  of  this  to  endan- 
ger the  Credit  of  Men  of  Reputation  -,    but  the  Court 
would  not  grant  a  Prohibition,  for  they  faid  an  unjufl  ^^Z^.  1-2. 
Sentence  of  the  Admiralty,  in  a  Caufe  of  which  they  Becks,  v. 
have  Original  Conufance,  is  not  a  Caufe  of  Prohibition.  Chelfcoke. 
As  if  Tythes  which  in  verity  are  paid,  are  found  not  paid 
in  the  Spiritual  Court,   yet  a  Prohibition  lies  not,  and 
here  the  Judges  Delegate  have  fole  Power  upon  this  Re- 
cognizance, to  make  Execution  or  defeat  it. 

The  Corporation  of  Triniiy-Houfe^  under  pretence  of  Suit  there  for 
Letters  Patents  from  Queen  Elizabeth  for  the  ballafting  of  not  ^allafting 
all  Ships  within  the  Bridge  of  London  and  the  Sea,  and  ^     ^^* 
that  no  Ship  (hould  take  Ballafl  of  any  other  but  of  them, 
fued  one  Borcman  (a  Dutch  Man)  in  the  Admiralty  for 
taking  Ballafl:  of  another,  within  the  Place  aforefaid.    Per 
Curiam  the  Place  being  alledged  to  be  at  Ratcliffe^  a  Pro- 
hibition was  granted-,  refolved  that  the  Letters  Patents  zBrovonLiil 
were  void,  for  that  thereby  a  Charge .  is  raifed  upon  the 
fubjecl  for  the  private  gain  of  the  Houfe,  for  they  would 
not  ballafl:  a  Ship  under  2  d.  per  Ton, 

In  the  Cafe  of  Sir  Richard  Hawkins^  Vice- Admiral  of  13  c^?.  51. 
the  County  of  Bevon^  who  was  profecuted  in   the  Star- 
Chamber^  for  abetting  and  comforting  Hull,  and  other  no- 
torious Pirates.     It  was  there  refolved  that,  by  the  Com- 
tnoa  Law  the  Admirals  ought  not  to  meddle  with  any  / 

thing  done  within  the  Realm,  but  only  v/ith.  things  done 
upon  the  Sea  j  and  alfo  by  the  Statute  of  13  R.  2.  c,  5.    ^ 


no        M  pjeffing  ®Up&  ana  ^ar mem  b o o k  i. 

It  was  likewife  refolved,  that  the  faid  Statutes  are  to 
be  intended  to  hold  Plea,  and  not  of  a  power  to  awanl 
Execution  ;  for  the  Judge  of  the  Admiralty  notwithftand- 
ing  thefe  Statutes  may  do  Execution  within  the  Body 
of  the  County. 
13  Co.  53.  The  Court  of  Admiralty  is  not  a  Court  of  Record 

becaufe  they  proceed  there  according  to  the  Civil  Law. 
Where  one  admits  the  Jurifdidlion  of  the  Admiralty  by 
pleading  there  ;  no  Prohibition  fhall  be  granted.  Jenninn 
Lord  Ray-     againft  Audley^    2  Brow, -^o,   12  Rep.  jj.     Therefore  on 
mond,  247.      Motion  for  a  Prohibition  in  a  Suit  for  Seamen's  Wages, 
there  the  Suggeftion  was,  that  the  Court  below  refufed  to 
allow  the  Defendant's  Allegation  ;  that  the  Place  where 
the  Plaintiffs  entitled  themfelves,  was  not  a  Port  of  De- 
li very  :    This  is  no  Foundation  for  a  Prohibition  \  if  any 
thing  it  mull  be  an  Appeal. 
Suit  tliere  for      Cradock  bought  divers  Things  within  the  Body  of  the 
Gontraaapon  Countv,  which  concerned  the  furnifhing  a  Ship,  as  Cor- 
LandProhibi-  ^^g^^  'y^^  ^j-^^  Vender  fued  him  in  the  Admiralty  Court; 
a  Prohibition  was  granted,  2  Brow.  37.  Cradock's  Cafe, 
Owen  122,  ^Keeble ^^2.  Merryweatherdi^xm^Mountfori 

Note^  No  Appeal  from  the  Admiralty  before  a  Defini- 
tive  Sentence.  Lord  Raymond^    1248. 

I.  LeiK  243.  The  Defendant  being  Mafter  of  a  Ship,  of  which  the 
^^^•^3^5-*73*  Plaintiff  was  Owner,  the  Ship  was  taken  by  Pirates  upon 
2 Saun!' 260  ^^^  ^^^'  ^^^  ^^  redeem  himfelf  and  the  Ship  he  con- 
zL^v,  25.  trailed  with  the  Pirate  to  pay  him  50/.  and  pawned  his 
I  Fen.  173,  Perfon  for  it  -,  the  Pirate  carried  him  to  the  Ille  of  Scil- 
3°^-  /y,  and  there  he  paid  it  with  Money  borrowed,  and  gave 

Cro.F./^z'is-,  -^^"^  ^^^  ^^^  Money  at  his  Return*,  after  the  Redemption 
both  of  the  Ship  atid  himfelf  he  fued  in  the  Admiralty  for 
the  50  /.  and  had  a  Sentence  for  it,  and  thereupon  a  Pro- 
hibition to  the  Admiralty  was  prayed  but  denied,  becaufe 
the  Original  Caufe  began  upon  the  Sea,  and  whatever  fol- 
lov/ed  was  but  accefibry  and  confequential.  Ha7'd.  i8^j> 
Prohibition  was  granted  to  the  Admiralty  Court  on  th* 
22d  and  23d  Ca.  2.  cap.  26.  Se5i.  11.  in  Suit  there  for 
the  Forfeit  of  a  Ship  on  felling  Wares  in  Ireland  without 
breaking  Bulk,  being  put  into  Ireland  from  America^  by 
contrary  Winds,  this  being  triable  in  the  Plantations  or 


Ih  <s>(  l^jcffmg  %f)ip$  antj  ^atintvg.        1 1 1 

erjiy  Court  of  Record  in  JVeJiminfter,     Pidgeon  con,  Trent ^ 
toi  Keeble640,  647,  651.  {Vide  Lihrum.) 
A  Mafter  of  a  Ship  agreed  with  certain  Merchants     ' 
)ncerning  a  Voyage,  and  received  Orders  from  them  to 
y  in  Provifions  of  Meat  and  Drink,   and  to  provide 
fjlariners,  6fr.  and  after  the  Voyage  was  finiihed^  the 
lerchants  refufed  to  pay  the  Mafter  of  the  Ship,  what 
ley  had  agreed  for,  upon  which  he  libell'd  againft  them. 
.  the  Admiralty  ;    Prohibition  was  granted  upon  die  Sta- 
ite  of  2  i^.  2.  cap.  3.  the  Contradb  being  upon  Land,  and 
snied  the  Cafe,    Hill,  8.  Ca.  i.  Cro.  296.   which  faith  Prohibition 
lat  when  a  Thing  is  in  its  Nature  Maritime,  as  in  the  ^°"  "^t  lie 
afes  of  Mariners  Wages,    the  Admiralty  Ihall  have  the  Wa^s."""'  ■ 
.'onufance  of  it.    JVoodward2L^2im^BomJhan^    Raymond^, 
.id  3  Levinz.  60,  C^^d*  againft  Cr etcher y  &c.  2  Vent,  181. 
If  a  Contrad  or  Obligation  be  made  upon  the  Sea,  Cortraa  not 
et  if  it  be  not  for  a  Caufe  Marine,  the  Suit  upon  this,  ^^^rine  made 
lall  be  at  Common-Laiv^  not  in  the  Admiralty,  Hob,  1 1.    ^'   ^^* 
If  the  Original  Contrad  be  made  at  Sea,  on  a  Marine  Contraa  at 
.aufe,  and  after  reduced  into  Writing  at  Land,  the  Com-  L^nd '^^^^  ^^ 
wn-Law  not  Admiralty  ftiall  have  the  Conufance.     Hob^ 
9.  212.  Palmer  2,^3^n^  Pope, 

If  a  Charter-Party  be  made  in  England  to  do  certain 
hings  in  divers  Places  upon  the  Sea,  tho'  that  no  A6fc  is 
0  be  done  in  England^  but  all  upon  the  Sea,  yet  no  Suit 
hall  be  in  the  Admiralty  for  Non -performance  of  the  Agree- 
nent  •,  for  the  Contradt  is  the  Original  and  is  out  of  their  Common 
furifdidion,  and  where  part  is  triable  at  Common-Law^  Law  pre- 
md  part  in  the  Admiralty ;  the  Common-Law  fhall  be 
^referred.  Maldonado  and  ^laney  i  Roll.  Abr.  532.  533. 

A  Contradt  laid  to  be  made  infra  fluxum  Q  reflumm  Lord  Ray: 
Maris ^  (^c,  is  well  enough  laid  to.  give  the  Admiralty  a  mona  1453, 
Jurifdidion  :  It  was  upon  the  high  Seas,  when  the  Water 
was  at  High- Water-Mark ;  and  it  might  be  at  Land 
when  the  Water  was  at  Low- Water-Mark.  In  that  Cafe 
there  is  Divifum  Imperium  between  the  Common- Law  and 
Admiralty  Jurifdidion.  Prohibition 

It  was  moved  for  a  Prohibition  to  the  Admiralty,  be-  J^j'y  ^^'I'^o- 
caufe  the  Libel  was  to  execute  a  Sentence  of  the  Alcade  ceeding  to 
^vhich  is  the  Admiralty  2X  Malaga  in  Spain,,  upon^  thing  execute  an 
done  within  a  Port  there,  and  after  a  Rule  for  a  Prohi-  ^"^e^^ocutory 
bition  nift,  'twas  moved  that  no  Prohibition  flaould  be,  for  pXig^Ad.^ 

tho'  miialty. 


SDf  p?effmg  ®Up^  attb  ^aviixm.  fiooKi 

tho'  this  Court  will  not  execute  the  Sentences  of 


pi  12.  Raym. 

Refcous  and 
triable  there. 

Goods  taken 
by  Piracy, 
triable  there 
tho'  fold  at 
Teh.  13^, 
173.  Hard. 
183.    1.  Si  J. 
320,   367. 
2  Saun.  260. 
2  Lev.  25. 
I  F(n.  173. 

Foreign  Court,  in  as  much  that  it  is  governed  by  a 
diftincl  Law,  yet  thefe  of  the  Admiralty  may,  ahd  this 
is  their  ufe  to  do  fo,  for  this  that  all  the  Admiralty  Court! 
in  Europe  proceed  by  the  fame  Law,  viz.  the  CiviLLaw 
and  TFibrel  and  IViat^s  Cafe  5.  ^t?.  was  cited,  to  be  ad- 
judged accordingly.  But  upon  Reading  the  Libel  in  the 
Principal  Cafe,  it  appears,  that  the  Sentence  was  not! 
Definitive,  but  Interlocutory  concerning  a  Matter  that 
founds  as  an  Adtion  upon  the  Cafe,  and  no  Sum  fct; 
and  alfo  the  Alcade  is  not  as  an  Admiralty  there,  and 
for  this  a  Prohibition  was  granted.  Jurado  and  Gregot)^ 
I.  Sid.  418,  I.  Levinz.  267.  i.  Vent.  32.  and  2.  Kethh 
512.  610. 

Motion  for  a  Prohibition  to  the  Admiralty.^  for  that  they 
libelPd  againft  one  for  refcuing  a  Ship,  and  taking  away 
the  Sails  from  one  that  was  executing  the  Procefs  of 
the  Court,  againft  the  faid  Ship,  and  for  that  in  the  pre- 
fence  of  the  Judge  and  Face  of  the  Court,  he  aflaulted 
and  beat  one,  and  fpake  many  opprobrious  Words 
againft  him.  Now  feeing  that  thefe  Matters  were  deter- 
minable at  Law,  the  Ship  being  infra  Corpus  Comitatui^ 
and  they  could  not  adjudge  damages  to  the  Party,  t)r 
Fine  or  Lnprifon,  a  Prohibition  was  prayed,  but  denied, 
for  they  may  punifli  one  that  refifts  the  procefs  of  their 
Court,  and  may  fine  and  imprifon  for  a  contempt 
tho'  they  are  no  Court  of  Record,  but  if  they  fhould 
proceed  to  give  Damages,  they  would  grant  a  Prohibition 
quoad  that.  Sparkes^  ^c.  againft  Martyn.  i.  Vent,  i, 
The  fame  Dodlrine  Lord  Raymond''^  Reports,  446.  and 
I.  Vent,  is  there  cited. 

A  Prohibition  prayed  to  the  yf(^«2/r^//y,  where  there  was 
a  Libel  for  a  Ship  taken  by  Pirates,  and  carried  to  'Turn 
and  there  fold,  for  that  it  did  not  appertain  to  xkiz  Court 
to  try  the  Property  of  the  Ship  being  fold  upon  Land. 
Curia  in  regard  it  was  taken  by  Pirates,  it  is  originally 
within  the  Admiral  Jurifdidlion,  and  fo  continues*  not- 
withftanding  the  Sale  afterwards  upon  the  Land.  Other- 
wife  where  the  Ship  is  taken  by  Enemies,  for  that  alters 
the  Property.  Contrary  to  my  Lord  Hobart  in  the  SpaniP 
AmbalTador's  Cafe  78.  i.  Vent,  308.  3.  Cro.  68s» 


If  Ships  or  Boats  are  found  on  the  Sea  or  upon  the  Sh'ps  found 
^oaft,    without   any   Living  Creature  therein,    and    no  ^^  ^f^  l^'^-^'^S 
Tan  claiming  the  lame  withm  a   Year  and  D^y,    the  ^j^ 
inder  formerly  ufed  to  have  one  Moiety,  and  the  Prince 
he  other  Moiety,  but  now  'tis  left  to  the  difcretion  of 
''^' he  Admiral,  what  the  finder  fhall  have  for  his  Trav-il, 
^'S^haro^es,  Danger.    And  if  the  finder  conceal  fuch  Goods, 
^'^'vhether  belonging  to  the  Ship,  as  Anchors,  Timber  or 
^^l»ther  Goods,  hefhall  not  only  lofe  his  Part,  but  be  fined 
^'l,t  the  Will  and  Pleafure  of  the  Admiral. 

•I    If  Whales  or  other  regal  Fifii,  Ships  or  Boats  with-  J^nyal  Flfh 
5')ut  any  Living  thing  in  them,    be  driven  by  force  oi  Deodands, 
'•Wind  or  Waves  only,  to  any  Coaft  or  Land,  then  all 
\  ioth  belong  to  the  Admiral,  Lex  Meraxt.  120. 

See  more  of  this  Matter,  4,  Inft.  134,  i£c.  of  the  Court 
^{Admiralty,  i.  Roll.  Ahr.  528,  l£c.  Title  Admiralty, 
%     After  Sentence  in  the  Admiralty  Court  for  the  feizing  Trover  aftef 
of  a  Ship,  Trover  and  Converfion  at  Law  will  not  lie,  ^entence  will 
Bedke  contra  T^hynwhitt^  Laws  of  the  Sea,  425. 

Hutchinfon  killed  one  Colfon  in  Portugal^  and  was  ac-  Acquittal  of 
quitted  there   of   the   Murder,    the   Exemplification  of  ^^"^^.^^^^^  ^.^^ 
which  Acquittal  he  produced  under  the   Great  Seal  of  a  Foreierf  ^" 
that  Kingdom,  which  by  the  Opinion  of  all  the  Judges  Kingdom,  he 
was  fuch  an  Acquittal  by  xheir  Law,  that  he  could  not  be  ihall  not  be 
tried  here  again.  medagaia 

The  Admiralty  hath  not  Jurifdidlion  o^JVrecke.  5.  Rep, 
106.  2.  Infi,  167.  4.  Inft.  154.  15.  R.2,  c.  3. 

Cafe  upon  the  Statutes,  13.  R.  i.e.  5.  15.  R.  2.  c.  3.  and  9^^^  Tor  Aie- 
2.  H.  /^.  c.  II.  for  fueing  in  the  Admiralty  for  matters  done  ^^fjjj^raltv 
upon  the  Land,  and  declared  that  the  Plaintiff  was  go- foj.  matters 
ing  from  the  Port  of  London.,  with  his  Ship  laden  with  at  Land. 
Merchandizes,  and  that  the  Defendant  brought  a  Suit 
in  the  Admiralty  to  flay  the  Ship,  till  caution  fhould  be 
given,  that  fhe  fhould  not  traffick  with  Infidels,  within 
the  Limits  of  the  Charter  of  the  Eaft- India  Company  ; 
and  that  they  procured  the  Ship  to   be  arrefted  by  Pro- 
cefs  of  the  Admiralty.,  and  to  be  detained,  by  which  the 
Plaintiff  lofl  the  Profit  of  his  Voyage  •,  upon  not  guilty 
pleaded,    a  Special  Verdid  was  found,  viz.  they  found 
the  Charter  of  the  Eaft- India  Company  of  13.  Car.  2.  by 
which  they  are  incorporated,    and  had  the  fole  Trade 
to  the  Eaft^IndisSy  granted  to  them  witb  a  Prohibition 

H  to 

3 14  iSDf  KleagttCjS  fig  aUtauce  equal  Book  l 

to  all  others  to  trafHck  with  Infidels  there  upon  pain  of 
Forfeiture  of  Ship  and  Goods,  and  that  the  Plaintiff  had 
prepared  a  Ship  and  Goods  to  go  to  the  Eaft- Indies  to 
TrafHck  with  Infidels  within  the  Limits  of  the  Eqft^India 
Company,  upon  this  they  petitioned  the  King  in  Council 
to  flay  the  Ship,  where  an  Order  was  made  to  the  ^dmi- 
ralty  to  ftay  the  Ship  by  their  Procefs,  which  ifTued  ac- 
cordingly, and  the  Ship  was  (laid,  prout^  C^c.  all  which 
was  done  by  the  Defendants  as  Agents  of  the  Company, 
and  they  as  Agents  paid  the  Fees  of  the  Profecution, 
and  if  guilty.  Damages  for  the  Plaintiff  in  duplo  1500/. 
fo  upon  Arraignment  judgment  for  the  Plaintiff,  and  oa 
Error  afiirmed.  Sands  againft  Sir  Jojtas  Child  and 
4.7«/?.  138.  others.  3.  Levinz  351.  A  like  Cafe  i.  Vent,  47.  Home 
againft  Ivie.  *. 

C  H  A  P.    vir. 

SDf  J^omiin'on  eftabltj|)el>  6^  Creattc^  of  ai^ 

Umtt  in  (general* 

I.  Of  Treaties  their  ends. 

II.  Of  the  matters  conftderahle  in 
the  making  of  them^  and  hcvj 
the  overtures  are  made. 

III.  Of  the  'varicui  Sort  of  Treat  iesy 
and  firji  of  thofe  by  inier'vieiu. 

IV.  Of  the  pretexts  generally  made 
to  obtain  fuch  Treaties. 

V.  Of  Princes  equal,  the  honour  is  to 
be  paid  by  him  in  poffefjion. 

VI.  Of  Treaties  by  Princes  unequal. 

VII.  Of  Treaties  fecret  and  open. 

VIII.  Of  Things  requifitefor  Prin- 
ces during  fuch  Treaties, 

IX.  Of  Places  proper  for  Treaties. 
X-  Princes  nvhere  obliged  to   treat 

perfcnally,  and  njoher^  not. 

XI.  Deputies f  their  demeanor  gene- 
rally ccnfJered  in  Treaties. 

XII.  Of  tht  Clanfes  generally  to  he 
conftdered  in  Treaties  general  and 

\    particular. 

XIII.  Of  the  nature  of  Treaties  ge- 
nerally  confidered  as  to  their  endsy 
and  cohere  they  determine  by  the 
Death  or  Difpoffejfion  of  a  Prince^ 
andivhere  not, 

XIV.  Of  Treaties  to  njohat  end,  ani 
ho^M  they  ha've  been  flrengthma 
in  England. 

XV.  Of  the  Caufes  ordinary  pro* 
curing  fuch  Leagues. 

XVI.  Of  Leagues  by  nioay  of  Me- 
diation  tending  to  the  procuring 
of  a  general  Peace  <vjith  War- 

XVII.  Confideralions  on  Leaguti. 
defenji^e  and  offenfive,  and  oftht^ 
Ad'vantages  and  Difad'vantagei 
thereof  in  reference  to  the  Eflatt 

XV III.  Leagues  deferfive  confruei, 
offenfi-vc  in  fai'our  of  the  oppreft. 

XIX.  CQUtribution,  the  difficulty  in 


njadsd  hy  one  another ,   and  of  Pro- 
te^ion  granted  a  People  'vchen  op~ 
prejfed,  ^wh ether  Aid  to   fuch  may 
be  cofijijient  ntjith  a  Leagu-' 
XXV.   Whether  the  Oath  tnken  fcr 
the  Perfcrmanct  of  the  League  h^ 
per/onaly    or  hivds   the  Succajfor, 
and  of  the  Interpretation  of  the 

regulatmg  the  fame  to  the  fatlf 
faSlion  of  the  Per  Jons  intereffed.    . 

XX.  Of  Leagues  concluded  hy  Depu- 
ties,  and  the  Difficulties  ifed  to 

'  'delay t  by  ivhich  defgns  may  Je- 
er etly  he  carried  on. 

XXI.  Conjideration  had  on  Leagues 
made  for  carrying  on  fame  parti- 
cular Enterpriz,e 

XXII.  Of  the  Caufes  that  generally  ;   XXVI.      Of  Leagues   taade   ^vith 

tccafon  a  Rupture. 
i  XXII I.  Of  the  Obligation  on  Con- 
|j  federates  in  reference  to  mutual 
[^        Succours. 

XXIV.   Of  Aid  granted  to  particu- 

Princes  tvhcn  dri'ven  out  of  theif 
Countries,    imhether  they  remain 
<vaUd  and  frm. 
XXVII.   Whether   Leagues  may  he 
entred  into  by  Chrijfian  Princes 

lar  and  common  Allies  ijjhen  in-  '        ^th  Infidels. 

I.  fir\  R  E  AT  I  E  S  are  occafioned  by  a  wife  and  pru-*- 
X     dent  Care  of  infpedling  the  Motions  of  Neigh- 
bours and  of  their  Affairs,    the  v;hich  are  generally  re^ 
duced  to  thefe  Three  Heads,   upon  the  Confiderations, 

1.  How  a  Prince  fliould  govern  himfelf  with  his 

2.  In  gaining  a  Credit  among  them,  and  to  have 
a  part  in  their  Dehberations. 

3.  Is  the  main,  which  is  to  pierce  into  his  Neigh- 
bours defigns  -,  for  thofe  Centers  being  difco- 
vered,  a  Prince  eafily  knows  how  to  draw  his 

II.  In  Treaties,  the  firft  thing  to  be  confidered  is  the 
manner  of  making  the  O^^erture  •,  and  therefore  it  may 
fo  happen,  that  of  tv/o  Princes  who  are  Enemies,  the  one 
will  not  feek  unto  the  other  for  an  accord  •,  therefore  the 
general  Medium  is,  that  the  motion  be  propounded  by 
fome  greater  Prince,  or  by  fome  Neighbour  that  is  a 
Friend  to  both,    and  fometimes   the  Minifters  of  two  ^    . 

rinces  meeting  *  accidentally,  if  they  be  employed,  yet  ^^^d  a  Steward 
propound  an  Accommodation.    When  a  Prince  or  State  is  of  the  Duke 
exafperated  with  another,  and  having  gotten  an  Advan-  "^^  ^'aniua 
tage,  will  often  refufe  to  treat  any  where  but  in  his  own  "J^^'^'^S^t 
v^ountry,  nor  that  unlefs  nril  fought  to  by  a  fubmiinve  ,./^,  to  con- 
dole in  their 

Matters  names  for  the  Death  of  the  Marquefs  of  Forcat,    made  an  overture  for  the 
Treaty  of  Peace  betwixt  Cbarlss  the  Eighth  and  Lewis  Sforfe. 

H  2  >  Requeft,^ 

1 1 6  flDf  Kleagttes  hv  aiitatt te  c^ttai*  b  ook  i. 

+  March  8.  Requefl,  as  by  Letter,  &c.    So  they  of  f  Holland  and 

^^>3-  t^yor-  Weft-Friezelnnd  confidering   the  miferable  Diftrefs    and 

States   fub!  incorrigible  Diforders  of  their  People,  did  fubmit  thus  to 

{cvihtd  Her-  confefs  their  Errors. 

hert  Van 

.Beaumont,  and  afterwards  by  a  Letter  from  the  States  General  praying  a  Neuter  place, 
April  30.  1653.   then  by  a  Petition  j§  "June  after.  Leo  ab  Ailzmay  fol.  817,  818,  825. 

III.  Treaties  are  a6led  either  by  the  interview  of 
Princes,  or  by  perfons  fufiiciently  commiflionated  for  that 
purpofe.  "^ 

Thofe  that  are  by  interview,  have  been  often  difap- 
proved,  though  often  pradlifed  ;  but  that  depends  rather 
on  the  Eflate  of  Affairs,  and  the  conformity  and  diverfity 
of  Honours,  and  manner  of  living  of  the  Princes  and  their 
People,  than  of  the  interview :  that  of  Lewis  the  Eleventh 
with  Duke  Charles  of  Burgundy^  and  of  the  fame  King 
with  Edward  the  Fourth  oi  England  pail  fairly  :  And  in  all 
fuch  Treaties  they  govern  themfelves  in  reference  to  their 
fupplies,  according  to  the  Confidence  which  they  repofe 
\jugurtha     in  each  other.     |l  But  thofe  interviews  of  Princes  have  ever 
taken  by  his    y^^^^s.  obferved   dangerous  ;     for    Princes    meafure   theit 
l^^^B^c'chus    Q!^^^^^y>  not  by  the  extent  of  their  Dominions,  but  by  the 
and  delivered  abfolutenefs  of  their  Power  :  So  that  he  that  is  Supreme 
to  the  Ro-      and  Independant  in  his  own  Country,  counteth  himfelf 
mum\  Charles  equal  to  any  other  Prince,  how  great  foever.     Perchance 
%^Fran^^\t  fomc  youthful  Kings  may  difport  and  folace  themfelves 
a  perfonai       in  one  another's  Company,  whilfl:  yet  Pleafure  is  all  the 
Treaty  with    elevation  of  their  Souls  ;    but  when  once  they  grow  k^- 
the^Dukeof    fj^je  ^f  ^\^^\^  own  Greatnefs,  (a  Leflbn  they  will  quickl^ 
Se  Duke        ^^^^"'  ^"^  ^^^^  "^^^^  want  Teachers)  then  emulation  will 
though'a  *       be  betwixt  them,  becaufe  at  their  interview  they  cannot 
Soyereiga       fo  go  in  Equipage,  but  one  will  ftill  be  the  foremoft,  e!^ 
^M^^^'ih        ^^^^  ^^^  Perfon  will  be  more  proper,  or  Carriage  more 
Phf.Womims'  Court-like,  or  Attendance  more  Accomplifhed,  or  Attire 
ifb.^.  cap.  10.  more  Fafhionable,  or  fomething  will  either  be  or  be  con- 
ceived to  be  more  Majeflical  in  one  than  the  other  :  And 
Corrivals  in  Honour  count  themfelves  eclipfed  by  every 
beam  of  State   which  fhineth  from  their  Competitor  j 
therefore  fome  hold  the  befl  way  to  keep  great  Princes  to- 
ther  is    to   keep  them   afunder,    accommodating    their 
Bufinefs  by  their  Ambafliidors,  left  the  meeting  of  their 
own  Perfons  part  their  Affections,  as  it  fell  out  between 


I  j  Chap. VII.  jflDf  TLta^ut^  bv  SiUiamt  eqaaL  ui  17 

*  f  Kino*  Richard  of  England  and  Philip  of  France  y    and  Richard  Hove' 
Maximilian  the  Firft  and  Zfw/J  the  Twelfth.  ^^J  ^'«  ^^'^'^- 1 * 

IV.  It  is  prefumed,    that  the   Perfonal   Treaties  of^'^'  ^^^• 
Princes  are  not  for  matters  fmall  and  trivial  ;  therefore  it 

is  an  undoubted  Maxim,  That  as  Jealoufies  may  heincreafed 
amongfi  Neighbours^  by  reafon  of  fuch  perfonal  interviews^ 
fo  they  muft  find  out  fame  apparent  and  important  pretext^ 
which  being  made  known  and  publifoed  to  remove  the  jea- 
loufies of  their  Neighbours^  they  jnay  then  under  fuch  colour 
and  Jhadow^  treat  the  mofi  fecret  of  their  Affairs.  So  Pope 
Clement  the  Seventh  under  the  borrowed  Pretext  of  Ti, 
general  Peace  and  League  againft  the  I'urksy  Cwhich 
founded  pleafingly  in  the  Ears  of  all  Princes)  at  Marfeilles 
concluded  the  Marriage  of  his  Niece  with  Henry  the 
Second  of  France, 

V.  But  if  of  two  Princes,  the  one  goes  home  unto  the 

other,  he  is  bound  to  do  him  the  Honour  of  his  Houfe  5  ' 

And  if  the  Prince  be  inferior  to  him,  he  commonly  fends 
forth  fome  of  the  principal  Officers  of  his  Court  to  receive 
him  V  but  if  he  be  his  equal  in  Quality,  as  being  both 
Kings,  although  there  be  fome  debate  betwixt  them  for 
precedence,  if  he  come  firfl  to  the  place  where  the 
Treaty  is  to  be  made,  he  muft  go  in  Perfon  and  not  by 

In  the  interview  that  was  between  Lewis  the  Twelfth  ^;V^  jEmiliu\ 
and  Ferdinand  of  Arragon  at  Savona  (which  then  belonged  Paulm\  Hi- 
unro  the  French  King)  Levns  the  Twelfth  at  the  approach  ^^°^y  ^^ 
^i  Ferdinand\Gd\\f^  (before  he  could  land,)  enter'd  into  ^^^^^^^^i^" 
it,  accompanied  only  with  his  Guards  to  teftify  his  con-  fuppiyof  the 
fidence,    and  thereby  to  afiure  King  Ferdinand  of  that  fame,  of  the 
which  he  had  promifed  he  fhould  find  in  him  ;    and  at  ^i^l^^^r^ 
their  going  to  Land,  King  Lewis  left  the  Right-hand  to  /^^^;,/ after-* 
Ferdinand^  who  lodged  in  the  Caftle,  as  the  moft  honour-  ^yards  Le^is 
able  Place,  and  himfelf  went  to  the  Bijhoprick,  XII.  upon  the 

VL  By  the  Laws  of  Trealies^  when  two  Princes  unequal  failure  of  iffaa 
in  Quality  parley,  the  inferior  is  to  come  firft  to  the  place  ^l^r/es  tH 
of  congrefs  there  to  attend  the  Greater  ;    yet  the  contrary  8th. 
hath  been  moft  commonly  obferved  upon  this  very  rea- 
fon, that  he  that  is  lefs  ought  firft  to  wait  on  the  Greater, 
and  from  thence  go  to  the  place  appointed  for  the  Parley  5 
and  this  was  particularly  done  at  the  interview  of  Popq 

|i  3  Qlem.ek^. 

Clement  the  Seventh  and  King  Francis  the  Firft,  although 
that  Marfeilks  were  in  the  King's  Subjedlion. 

VII.  Again,  Treaties  by  thofe  that  are  fufficiently  com, 
iniffionated  for  that  purpofe,  are  to  acfl  either  fecretly  or 
openly.     Treaties  clofe  or  fecret  are  ufually  made  in  or- 
der to  the  compkating  or  fettling  of  Leagues  between 
two  Piinces  or  States,  fometimes  by  entertaining  him  with 
whom  they  treat  under  fuch  a  Pretext,  to  deceive  him  in 
the  end  ;  at  other  times  to  furprize  an  Enemy,  or  to  aft 
fure  a  Prince  of  two  Enemies,  treating  with  one  fecretly, 
the  other  openly,  and  the  like.     Thefe  are  the  ordinary 
f  So  W^r/V^r- Policies  among   Princes,    and   wherewith    the  wifcft  of 
^^^"  TI.  ^^^   Kings  t,  and  the  moft  knowing  Councils   have  been  de- 
ine'^twice^a.  reived  and  abufed  even  to  accept  of  a  Treaty,  when  at  the 
bu.ld  H.  8.   fi-rne  time  the  Propoler  hath  no  other  thoughts  than  to  be- 
propofed  a     tray  them :  the  Spaniards  have  been  fam.ous  at  thefe  Projects, 
third,  which   pvlcmorable  was  that  defign  of  theirs  to  interrupt  the  League 
would  reiVn    which  was  ready  to  be  made  between  the  Princes  of //^/y 
up  the  Impe-  and  Pope  Clement  the  Seventh,  after  the   Battle  of  ?a- 
rial  Crown  to  <uia^  propounding  unto  the   Pope   to  treat  and  accord, 
him;  the  Re-  the  which  not  only  hindred  the  Leamie,  and  flaid  the 
itnttoE-ridavJ  preparations  or  War  whicn  he  might  make,  but  alio cauled 
and  approved,  hin>  to  difcharge  the  Tioops  which  he   had  drawn   unto 
H.  8.  is  to    him  for  his  fafety.     So  Bourbon^  General  of  the  Impe- 
^°^^!,^^t^^^'"^  rial  Army,  entertained  the  Pope  with  an  accord,  whilft 
cefve    the       ^^^  Army  marched  to  the  Walls  of  Rome, 

Crown,    and 

Maximilianis  to  acrompany  him  to  Rome  to  receive  the  laft  Right  of  the  Imperial  Digfli* 
ty,  and  having  given  him  the  Invellitureof  Milan  in  fie  do  more  ImpsnaU,  then  in  poffef. 
iion  of  the  French^  and  in  enmity  with  the  Hcufe  of  Aujlria  :  a!l  things  being  thus  coo- 
duded,  and  //.  8.  having  paid  the  Monies  agreed  on,  and  made  ready  his  preparations. 
Charles  the  Fifth  and  Grandfon  of  Maximilian^  is  a  rub  in  this  League,  v.' ho  muft  be 
firft  removed  j  thereupon  the  old  Fox  the  Emperor  fends  a  Propofal,  that  he  would 
come  firft  into  the  Neiherlatds  to  take  orF  his  Grandfon,  which  while  agitating,  he 
llrikes  up  a  fecret  Peace  with  the  French  King,  and  fo  H.  8.  is  betrayed  a  third  till\p 
^Tid  the  agreement  refufed  to  be  complied  with,  Coiton  Treaty. of  Amity^  foL  99. 

VIII.  Hence  it  is,  that  during  Treaties,  be  they  open 
.or  fecret,  the  Princes  or  States  concerned  in  them,  muft 
watch  the  more  carefully,  have  the  diligenter  Eye,  and 
by  all  the  ways  imaginable  reinforce  their  ilrength  ;  not 
pnly  to  fruflrate  their  Enemies  of  all  hopes  to  furprize 
.them,  but  to  the  end  the  Confideration  of  their  Force 


ghap-vil  m%ta$ut&  bv  antance  zmau        119 

and  Opulency  may  put  them  in  a  pofture  to  obtain  Con- 
ditions of  more  Advantage.     Bcfides,   it  is  an  undeniable 
Maxim,  that  no  treaty  mufl  be  held  firm,  valid,  and  con-' 
eluded,  unlefs  it  be  ratified  by  that  Prince  or  State  with 
whom  the  fame  is  made,  efpecially  if  it  be  with  a  Prince 
whom  they  detain  Prifoner  -,   for  by  f  Law  the  force  by  ^  ^^^^^^^^^^^ 
the  which  he  hath  been  conitramed  to  promile,  will  at  ^^^^^^^  ^^,  ^,. 
leaft  difpenfe  with  him  fo  far  as  to  rc-advife,  if  not  to  nerequipotuit, 
break.  ^-T  %ff' 

pojtto  Imfsrh  pri'vatui  &  capfus  ipfe  in  ahenam  fvenijfet  poteftatem  ?  Curio  in  Caefar,  to 
rhofe that  had  been  the  Soldiers  of  Domitius,  fo  fpake,  iib.  \i.  de  Bella  Ci'vili.  Vide 
ii,ot,Ub.z.cap.  13.  §.  18.  Vo^e  Clement  the  Seventh  refufed  to  ratify  the  Treaty 
with  Dnke  Ftrrara  which  he  made  when  a  Prifoner,  faying,  That  it  was  a  dilhoncur- 
able  thino-  for  a  Man  in  Life  to  ratify  a  matter  done  in  his  Name  when  dead,  noc 
confiftcnt  with  his  Honour  ncr  Intereft.  So  Francis  the  Firft  excufed  himfelf  to  ratify 
the  Treaty  of  Madrid,  upon  the  inhumanity  done  to  him  by  the  permiffion  of  Charles 
the  Fifth,  they  being  extorted  from  him,  nor  did  they  take  place,  though  the  iCing 
-left  his  Children  as  Hoflages. 

IX.  Again,  as  in  the  Parlies  of  Princes,  the  place  where 
the  Interview  is  to  be  made  is  very  confiderable  j  fo  is  it; 
in  Treaties  v/hich  are  tranladed  by  EmbafTadors,  Agents, 
Envoys,  i£c.  if  it  be  to  compleat  a  Peace,  or  fettle  a 
League,  icmuft  not'be  too  far  from  the  Confederates,  but 
at  feme  convenient  place,  to  the  end  they  may  have  the 
more  fpeedy  Anfwers  from  their  Principals ;  h\^t  then  the 
firft  is  always  to  be  in  fome  place  Neuter,  or  fometimes 
upon  the  Confines  of  Kingdoms  5  for  that  it  is  nei- 
ther reafonable  or  honourable  to  treat  a  Peace  in  the  Ter«. 
ritory  of  one's  Enemy  ;  but  the  latter  touching  Leagues 
may  be  any  where.  That  of  Edward  the  Fourth  with 
Lewis  the  Eleventh  was  in  the  Territories  of  the  Duke  of 
Burgundy^  but  that  was  perfonal  :  And  that  between 
France  and  Spain^  concluded  by  Cardinal  Marazine,  and 
Don  Lnvis  Mendez  de  Haro,  Plenipotentiaries  of  both 
Crowns,  was  in  the  Ifle  of  Pheafants  in  the  River  Bidajfoa  j<[,rve?nhf  ?, 
upon  the  Confines  of  the  Pirenaan  Mountains.  And  the  1659, 
laft  great  Treaty  which  begun  at  Cologne  in  the  year  1673. 
under  the  Mediation  of  Swede land^  in  order  to  put  an 
end  to  that  War  wherein  moft  of  the  CrownM  Heads  of 
Europe  were  involved,  was  look'd  upon  as  a  place  proper  i 
but  rhe  feizing  of  Prince  JVilliam  of  Furftemberg^  and  the 
i^l^ing  of  forty  thoufand  Crow.ns  out  of  the  Waggons  of 

H  4  thQ 

120  flDf  jdtasue^  ht  3llltancc  equal*    Book  i,^ 

the  French  Embafiador  in  a  Neutral  City,   broke  off  that 
Js^egotiatioa  ;  and  though  the  violence  committed  on  this 
Prince,  by  the  Eipperor'^  Minifters,  and  the  Injury  done 
to  the  French  King,  gave  ground  to  fear,  that  there  wa$ 
ro  Peace  to  be  expe&d,   and   that  the  Mod  Chrifti^i 
King  would  never  content  to  the  renewing  of  the  Treaty^ 
unlefs  reparations  were  firil  made  for  thofe  two  injuries; 
Neverrhelefs,  at,the  inftance  of  the  King  of  England  (whofe 
Mediation  was  generally  embraced  by  all  the  Princes  cotk 
cerned  in  that  War)  and  at  the  folicitation  of  the  Bifhop 
o^ Sirasberg^  who  pubhckly  declared  he  preferred  the  Ad- 
vantages of  Peace  before  the  Liberty  of  his  own  BrothePa^ 
J^bneguen   was  pitch*d  upon  as  a  place  neuter  and  proper, 
for  a  Treaty,  and  thereupon  the  French  King,  17  Ftbrm- 
?7,  1675,  named  for  that  Effe(5l  the  Duke  of  Filry^  Moiw^ 
ficur  Colbert,  and  the  Count  D*Avaux,  his  EmbaifadoFs,' 
X.  Embajjddcrs  having  received  Orders  to  treat,   the 
Prince,  to  whom  fuch  are  fent,  is  not  by  the  Law,  p|. 
Treaties  bound  to  treat  perfonaliy,    but  only  to  depute, 
fome  of  his  Council  for  that  Effeft »,  the  Reafon  is,  for 
that  the  Dignity  of  a  Prince  may  receive  fome  detriment 
which  cannot    be   maintained  amidfl:  the   Conteftations 
which  happen  in  Conferences. 
Julius  Ferre-        But  if  an  Ambaffador  be  deputed  as  Lieutenant  to  a 
tus  de  Legatts  pj-j^ce,  there  indeed  fuch  CommiRloner  is  not  bound  to 

/e7o"um"£de  ^^^^^  ^^^  ^^^^  ^^^^  ^^^  Priuce  himfelf :  and  fo  it  was  where 
U  oficiQ,  the  Bifhop  of  Gurgia  was  deputed  by  the  Emperor  to  Pope 
Julius  the  Second  :  the  Pope  commiflionated  three  Car- 
dinals to  treat  with  him ;  but  the  Bifhop  having  notice  in 
what  quality  he  was  like  to  be  received,  commiiTionated 
three  Gentlemen  to  confer  with  them,  excufing  himfelf 
upon  other  Affairs  \  which  afterwards  v^as  explained,  that 
.  he  came  not  as  a  fingle  Embaffador,  but  as  a  Lieutenant 

monly^n  the*^^  ^l^^  Emperor,  in  the  which  Quality  he  had  been  re- 
inftruaions  ceived  at  Rome  by  the  Pope  •,  Yet  it  hath  fo  happened, 
provided  for  that  Embaffadors,  if  not  admitted  to  a  perfonal  Treaty, 
the  EmbaiTa-  j^^^^  refufed  the  Difcharge  of  their  Commiffion  ;  and  fo 
point  if  the  ^^^  Chancellor  Marvel^  Embaffador  from  the  French 
matter  Ihould  King,  who  delivered  his  Meffage  to  Philip  Duke  o£ 
come  into  de-  Burgundy,  was  interrupted  by  Charles  the  Duke's  Son.  Jf 
p}^',  ^  .  ^  am  Jent,  fa  id  he,  not  to  treat  with  you,, hut  with  your,  "B^k: 
lib  i.        "  ther  \  and  Mr  Wai^^,  who  being  commiflionated  by  Queen 


*  HAP.viL  £)£  KLeagueg  bv  SUiiance  eaaai*  12 1 

^  lizaheth  to  Philip  King  of  Spain ^  would  by  no  means 
t  i^it  himfeif  to  be  turned  over  *  to  the  Sfantjh  Privy-  *  CaMnE- 
)uncil,  but  would  either  have  Audience  from  the  King  i^sA/o/.tso. 
.mfelf,  or  would  return  without  it.  5  4     -3 

XI.  The  Deputies  being  aflembled,  their  Seats  are  con- 
.'tl  derabie  ;  they  having  no  power  to  quit  any  thing  of  the 
i'^ank  which  their  Mafters  ought  to  hold  :  and  by  the  Law 
i^  f  Treaties  the  firft  place  is  at  the  head  or  end  of  the 
VahU^  (if  there  be  one)  the  fecond  is  the  firft  on  the 
^ighthand,  and  the  third  is  the  firft  on  the  left  hand  of 
^^  lim  that  is  at  the  end  :  and  if  there  be  many  Deputies  to 

me  Prince,  they  ufually  fit  at  one  fide,  to  have  the  more 
acility  to  confer  together,  if  it  be  needful. 

XII.  The  EmbafTadors  having  concluded  and  fettled  g^  julim  the 
heir  Places,  their  CommilTions  of  each  fide  are  to  be  in-  Second  did, 
■peded  and  confidered :  and  therefore  it  is  an  undoubted  who  finding 
Vlaxim,  That  when  they  are  general  or  ambiguous,  the  ^imfelf  preft 
Principals  have  no  will  to  conclude ;  or  if  they  are  fair  withL^w/nL 
ind  plain,  yet  there  may  be  wanting  power  to  conclude ;  fent  Cardinal 
3r  having  power  to  conclude,  it  may  be  with  a  Salvo,  till  F^"a/,^nd  Bi^ 
they  are  ratified.  fhopof  W/^ 

'  to  Panj,  but 

never  arine4  them  with    Power  to  conclude:    this  was  to   fruHrate  the  important 

inftance  of  the  Coniiftcry. 

The  principal  Claufes  generally  are, 

1.  Either  for  Peace  or  Truce. 

2.  For  Reftitution  of  that  which  they  pretend  hath 
'    b'^en  unjuftly  taken  away. 

3>  For  the  CelTion  of  Rights. 

4.  For  Limits  and  Bounds,  the  which  if  they  can- 
not regulate,  they  put  them  in  fufpence,  or  elfe 
they  make  fome  Adt  which  may  interrupt  the  prc- 
fcription  of  him  which  holds  them. 

5.  For  paffage,  with  Confignation  of  Hoftage. 

6.  For  Forts  or  Caftles  for  AfTurances. 

7.  For  an  Offenfive  and  Defenfive  League. 

8.  For  Neutrality. 

In  the  managing  of  all  which,  and  of  all  other  matters 

ptoper  for  fuch  Treaties,  a  fpecial  regard  muft  be  had 

«ot  to  move  for  a  Perfon  odious  to  him  with  whom  the 

Jr^aty  is  made,  ngr  to  yield  to  the  firft  demands  though 

•;  "  ■  never 


never  fojuft,   bat  refift  them  Itoutly ;  but  if  danger  i 
imminent,  then  it  is  a  certain  Maxim,  No^  ^ojludy  fo tnum'\ 
to  negotiate  with  advantage^  as  ta  provide  for  fafety, 

XIII.  Treaties  which  are  made  with  our  Neighbour 

as  Friends,  are  called  Treaties  of  Alliances^  equal  or ««, 

The  Leagues   ^?^^^^-     The  equal  is  either  of  fingle  Friendlhip  only,  [^ 

between  the    the  entertainment  of  Traffick,    or  for  aid  and  fuccour^ 

Crown  of       that  of  fuccour  is  for  the  Befeiijive  or  Offenfive^  and  fome. 

sTr  are  ^^^^^  ^^^  ^^^^'  ^^^^  ^^  againft  all  Men,  or  againft  fome 
commonly  certain  Princes  and  Republicks  ;  and  their  Alliances  ait 
betweenKings  contradled,  either  from  Efiate  to  Efiaie^  and  for  the  Pre. 
and  Kings,  fervation  of  the  Eflates  of  each  other  (in  which  cafe  by 
Realm  ^and  ^^^^  death  of  the  Prince  they  may  not  be  interrupted)  or 
Man  and  Man  ^Ife  they  arc  contraded  betwixt  Prince  and  Prince,  and 
of  their  Sub-  then  the  death  of  one  fufpends  till  a  new  Treaty  hath  con- 
jea:s,andhave  farmed  it,  unlefs  there  is  a  time  certain  prefcribed  by  die 
been"lookM  ^^^'-'^O'^  ^^  ^^e  which  the  Alliance  mnft  continue  after  the 
upon  to  be  the  death  of  the  Prince-,  or  elfe  they  are  made  from  an  EfiaU 
iirmeft  of  Al-  to  a  Prince^  where  the  death  of  the  Prince  does  likewiff, 
liances.  Phi.  jf  not  diflblve,  yet  at  leaft  fufpend  till  a  new  Treaty  ol' 
STT  And*  Confirmation  of  the  precedents,  although  by  the  Lav4:of 
in  the  very    England,  Rex  non  fnoritur. 

Alliance  with 

France  concluded  July  f  r-  The  firfl  Article  is  in  thefe  words  :  ^hat  there  he  an  mi- 
fv Br fal  and  perpetual^  true,  and  ftncere  Feace  and  Amity  hetnvcen  the  MoJ]  Chrifian  Kini 
and  the  Kina  of  Great-Britain,  their  Heirs  and  Succejfon,  and  het<wetn  the  Kingilom, 
States,  andSubje^s  of  both,  Scz.  Fide  9  E.  4.  2  a.  The  League  then  made  with 
the  Scots,  and  likewife  between  Edv^ard  the  Fourth  and  the  Duke  of  Bur^unilj, 
J'hil.  Comin.  /.  3.  f.  6. 

-    XIV.  Sometimes  Alliances  are  contracted  for  an  Enter- 
prize  and  for  one  effect  only,    in   the  part  in   which  the 
•Allies  are  interefled,  and  fuch  are  generally  called  Leagues^ 
f  Rot.  Pat.  4.  which  in  England  have  been  fometimes  confirmed  by  M 
ji.  <j.  num.  4.  ^y  Parliament  *. 

Coke  4.  Infit.  L(»ag;ues  are  fuch  Ao;reements  that  are  made  by  the 
Grot,  dejure  Command  of  the  fiipreme  Power,  and  whereby  the  whole 
6e//i  ^  pads  Nation  is  made  liable  to  the  Wrath  of  God,  if  they  in- 
/.  2.^.15.  §.3.  fringe  it. 

All  Leagues  or  Safecondu6ls  are,  or  ought  to  be  of  Re* 

cord,  that  is  they  ought  to  be  inrolled  in  the  Chance^f» 

to  the  end  the  Subjed:  may  know,  who  are  in  AmitJ 

■  with  the  King,  and  who  not,  who  are  Enemies  and  can 

five  no  A6lion  here,  and  who  are  in  League  and  may 
^^ve  Aftions  Perfonal  here,    4/??/?.  152. 

Leagues  commonly  are  Offenftve^  but  in  effed  they 
'  d  to  attempt  againll  fome  one,  and  in  the  bottom  are 
^  dged  Articles  of  Secrecy  for  the  Enterprize  :  and  fuch 
las  that  of  Camhray  againil  the  Venetians^   in  which  they 

!-owed  the  pretext  of  Religion  and  the  Peace  of  Chri-  Treaty  of 

-dom.  Camhray,  the 

'  which  were  Pope  Julius  the  Second,  the  Emperor-,  Kings  of  France^  Spain,  and 
nagon.  Anno  1558.  Hde  Hiilory  of  the  Republick  of  Venice tfol.  87. 

XV.  The  ordinary  caufes  for  which  "Princes  and  Re-  Sedutmrnpa- 
iiUicks  make  Leagues^  are  either  to  facilitate  a  Conquefl,  {^po/r^ ^d^vtm 
I  s  that  that  was  made  between  Lewis  the  Twelfth  and  ^f^^l^^f  ^^J^^ 
'Ferdinand  of  Arragon^   for  the  Realm  of  Naples-,   or  x.o  omni  aquitate 
dance  the  Forces  of  one  that  is  more  mighty,   in  hin-  ahhorret  Gxq- 
lering  him  that  he  grow  not  greater  ;    but  Arms  ought  ^f^^  aejure  ^ 
lottobe  taken  to  diminifh  fuch  a  Neighbour's  power,  i\[c\^.C\i. 
or  that  fear  is  uncertain  ;    but  prudent  Leagues  may  be 
nade  for  diminifhino;  their  Power. 

The  Englifo  made  a  League  to  fuccour  the  Hollanders^ 
lOt  only  to  balance  the  growing  opulency  of  the  Spanifh 
Monarchy,  bur  likewife  to  increafe  her  own  by  the  Alli- 
ance of  the  D'/Jch.     9uid  feq^uitiir  ? 

XVI.  Again,    Leagues  may  be  made  for  the  procu- 
ring or  a  gijueral   peace  by  way  of  Mediation   of  their 
Neighbours  in  War,  and  fuch  v/as  the  Treaty  of  Nimc- 
giicn  mediated  by  the  King  of  England^    and  concluded 
Aug,  10.  1678.  between  the  Ambafladors  and  Plenipo- 
tentiaries of  his  mod  Chridian  Majefty  on  the  one  part, 
and  the  Ambailadors  and  Plenipotentiaries  of  the  Lords 
States  General  of  the  United  Provinces  on  the  other  part ; 
Aich  was'alfo  the  League  of  Union  propounded  by  his 
late  facred  Majefty  King  Charles  II.  and  afterwards  con- 
cluded betwixt  him  and  the  States  General  of  the  United 
Provinces^  for  an  efficacious  Mediation  of  Peace  between 
France  and  Spain^  his  facred  Majefty  of  Britain  having  a 
Profpecl  to  what  afterwards  happened,   and  of  a  War, 
wherein  nioft  inevitably  would  be  involved  moft  of  the 
Princes  in  Chrifiendom  •,   to  the  efFedting  of  which  Peace, 
{iis  Majefty  and  the  States  General  dW  obtain  a  promife 


124  5©{Xeartuejs  bv  alliance  mmi  Book  J^ 

from  the  French  King  to  the  Dutch ^  to  lay  down  Ai 

on  condition  the  Spaniards  would  formally  and  folemr 

by  a  Treaty  of  Peace,  quit  to  him  all  thofe  Places  aii 

Forts,  together  with  the  Chaftellenies,  and  their  Appurl' 

tenances,  which  they  by  force  of  Arms  had  taken  in, 

fortified  in  the  then  lad  year's  Expedition ;  or,   otherwifi 

that  the  Spaniard  be  brought  to  transfer  to  the  FrenckA 

their  remainder  in  the  Dutchy  of  Lux  ember g  {ox  to  the 

County  0^  Burgundy)  together  with  Camhray  and  Qawkn^ 

Jis^  Douay^  Ayre^   St  Omers,  Bergue^   St  PFijioXj    Furm 

'  and  Lynk^  with  the  Bailiwicks,  Chaftellenies,  and  all  ,0, 

league  of  U-  ther  their  dependencies  •,  and  the  French  King  to  reftoreto 

liion  between  the  Spaniard  all  Places,  Territories,  which  they  have^j 

his  Majefty  of  ^.rms  taken  fince  their  entrance  into  Flanders^  on  condi- 

and^the  ^States  ^^^^  ^^^^  ^^^  States  General  do  reciprocally  undertake  and 

General  oU\iQ  fecurc  to  the  French^  to  prevail  with  the  Spaniard  to  con- 

United  Ne-    fent  to  the  fame  Conditions,  which  once  effeded  would 

'fa^'^^^^^'^h"'  ^^^  ^^^  hoped)  initiate  the  tranquillity  and  be  the  intereft 

Ba'Tue  JanM  ^^^  ^"^7  ^^  ^^^  ^^^  Warring  Crowns,  but  of  all  other 

Jum  i£6S.     the  Princes  of  Chriftendom.     To  the  effecting  of  whicli 

there  were  feveral  Articles  agreed  -,   and  likewife  it  was 

agreed,  that  if  a  peace  fhould  happen  to  be  made,  tis 

Majefty  and  the  States  General  fhould  become  Warrantees, 

and  a  place  left  for  any  other  Prince  or  State  to  come 

into  the  fame,  who  fhould  think  it  their  Intereft  to  keep 

the  Peace  of  Chriftendom  undifturbed,  and  to  .reftore  the 

Low-Countries  to  their  tranquillity  :  there  was  provifioa 

made  likewife  by  the  fame,  for  the  Forces  of  each  of  the 

Warrantees  to  be  ufed  again  ft  thofe  that  fhould  break  and 

violate  the  fame,  obliging  them  to  ceafe  the  violence,  and 

repair  the  Party  injured. 

The  -^nfwer        XVII.  A  Befenftve  League^  which  hath  no  other  bene- 

of  the  Ambaf-  fit  but  a  necefTary  defence,  and  in  the  which  mean  Eftates 

fador  from     ace  in  a  manner  equally  intereffed,  laft  ufually  longer  than 

Privernum  to  ^^  Offcnfive  League^  which   is  voluntary,    and  from  the 

Si  bonamd'ede-  ^hich  Cither  of  the  Confederates  will  eafily  part  when  he 

ritis  tff^damh^^^  more  iutcrcft  :  So  as  in  balancing  the  intereft  of  the 

cf  perpetuam,  onc  and  the  other,  he  that  fhall  find  himfelf  accompanied 

'^.^^''^;''^  ^'''"^with  diftruft,  and  an  opinion  to  be  irreconcilable  to  the 

Li'vMk^*.zi,  common  Enemy,  generally  proves  the  moft  firm  in  the 



I  r  A  p.  VII.  jsDf  %tmm&  fi^  mimct  tami        125 

The  fFi/dom,  Courage^  Means ^  and  Conftancy  of  the 
F  nee  or  State  is  to  be  confidered  ;  fo  likewife  the  di^ 
(\  ce  of  the  Places^  as  well  in  regard  of  thofe  with  whom 
fljr  unite,  as  of  thofe  againft  whom  they  make  the 
I  igues. 

XVIII.  Leagues  having  no  other  limitation,  hut  the  end  Pontius  Samnis 
D  he  Enterprize  for  which  they  are  made,  have  admitted  ^^^^^  reftitmi- 
iVrny  large  debates  in  cafes  of  accident :  For  inftance,  If  [^e  ^omam 
"a  Enemy  fhould  take  the  Country,  for  the  defence  where-  and  the  Au- 
c  the  Leagues  was  m.ade,  the  Queftion  has  been  whe-  thor  of  the 
"^,^r  the  Confederates  be  bound  to  afTift  him  who  hath  loft  ^^^^^^  y^^^^" 
^  n  the  Recovery  ;   fome  have  held,  that  the  Def en/we  Tum''%\th% 
1.  not  extend  fo  far  :  notwithftanding  if  there  were  no  eji  qukquidex 
"Heaty,  which  had  concerned  this  Conqueft,  yet  it  would  A^-?^^  rupto 
,  i  m  more  reafonable  to  comprehend  the  Recovery  in  the  ^'""^^'^^  '*  ^°^. 
\i  enfive,  if  it  be  general.     For  as  its  end  is  to  preferve  Tath/Zqui- 
,'j ;  Ally  in  his  State,  and  to  attain  it,  the  Forces  muft  not  bufcmque  Dih 
'I^J  ly  remain  in  the  Country  of  the  Ally  to  attend  the  Ene-  cordi  fuit juhi- 
J'jr;  but  after  denunciation  and  other  ads  of  Hof^iWty  ^' "^^^  ^^ '^"■^: 
'!  ne  by  the  Enemy,  they  muft  enter  into  his  Country,  "^^^f^  ^^//^^ol ' 
li  the  end  to  prevent  him  or  divert  him  from  2Lttempting  fuiji  corditam 
rj  y  thing  againft  the  Jlly^  the  Offenjive  being  judged  by  f^^p^^-^^  a  Ro- 
^  t  aggrejjion,  and  not  by  that  which  follows ;  by  a  ftrong  ^^^""  f^^dens 

'i*  \  "%  •  1  /^  1    £  XV I  ^t  10726  77% 

lion  they  ought  to  enter  mto  the  Country  conquered  ^^.^^^^ .  ^^d 
)m  the  Ally,  for  the  Recovery  thereof  -,  but  Excufes  in  a  little  after, 
is  kind  proceed  from  thofe  who  fail  in  their  faith,  cou-  ^^^^  mofe 
!i  ge,  or  means  to  recover.  ^?  ^  °^^  ^^ 

(1=5  '  thee,    O  Ro- 

man ?  what  to 
!  League?  What  to  the  Gods,  the  Judges  of  the  League?  Whom  Hiall  I  bring  un- 
tbee  to  be  the  Judge  of  thy  anger  and  of  my  pumfhment?  I  refufe  no  People, 
f  private  Men. 

I  XIX.  Contribution  is  one  of  the  main  ingredients  in  a  Jn.n^i^.Vid. 
league,  and  is  of  great  difficulty  to  regulate.     It  is  made  Sir  ^o^^r/ Co/- 
i  ther  in  Men  or  Money  •,   the  Men  are  entertained  by  all  ^^^  xreanes^. 
arties,  or  by  him  only  that  hath  need,  or  otherwife  as  the  of  Amity  and 
.eague  is.     Henry  Eighth  made  a  League  with  Francis  Marriage. 
le  French  King  againft  the  Emperor  Mammilian  and  Fer- 
iiiand,  for  the  Recovery  of  Milan,  which  he  did,  for 
le  protedion  of  his  Neighbour,  and  Redudion   of  the 
'^ijfe  from  the  Imperial  fide,  for  which  he  employed  the 
^^(ijtard  of  Savoy  5   the  agreement  was  of  r;£ciprocal  Suc- 

'  cour 


126  €)f  jHeagueji  t^v  autatrce  taml  BookJ( 

cour  of  loooo  Men,  if  the  War  were  by  Land,  andj^' 
6000  if  it  were  made  by  Sea  ;  and  in  all  other  occafion! 
the  French  King  was  bound  to  afTift  the  King  of  £wii 
with  12000  Lances^  and  he  the  King  of  France  with  looc 
Foot  at  his  charge  that  had  need. 

So  where  Contribution  is  concluded  for  Money,  ther 
are  difficulties  that  do  arife  from  the  Perfon  or  Place  wher; 
it  mufhbe  kept ;  to  deliver  it  into  the  hand  of  the  ftron4 
eft,  is  not  fafe,  for  fear  they  fh all  not  he  able  to  call  hint  u 
cccount  ;  to  lay  it  in  a  weak  place,  were  to  expofe  it  tf)\U 
attempt  and  force  of  theflrongeft^  or  to  him  that  Ihall  fifft 
take  Arms  •,  but  it  has  been  ufual  for  the  fum  not  to  be 
advanced  till  after  the  War  begun. 

XX.  Leagues  concluded  by  the  Deputies  of  the  Confdi- 
rates^  there  fometimes  falls  out  a  difficulty  who  fhall  ra- 
tify and  declare  himfelf  firft.     In  the  League  which  was 

Andre^p  Man-  made  between  Francis  the  Firft,  the  Pcpe^  and  the  Prm 
roceni  Hift.  ^^f  Jtaly^  the  King  refufed  to  ratify  until  the  Pop  and 
Venetians  had  ratified  before  him,  and  in  that  he  fo  cun- 
.ningly  wrought,  that  he  procured  the  Collegues  to  dedare 
and  begin  the  War,  whilft  that  he  treated  fecretly  for 
himfelf,  to  the  end  he  might  make  his  Conditions  with 
more  advantage  ;  this  he  declared  was  for  fear  thofe  lla- 
lian  Foxes  fhould  floew  him  the  like, 

XXI.  Leagues  made  for  an  Enterprize  fucceed  feldoro 
according  to  the  hope  of  the  Allies^  if  the  Enterprize  k 
long  ',  for  befides  that  the  preparations  be  long,  the  op 
nions  divers  in  the  purfuit,  the  refolutions  inconftant,  the 
interefts  of  Princes  or  States  in  a  League  may  change  with 
time,  or  with  the  pradice  of  him  againft  whom  they  are 
in  League,  in  withdrawing  fome  one  of  them,  or  making 
him  to  fuffer  more  lofs  than  the  reft  •,  for  feeing  himfelf 
ill  defended  or  fuc cour ed  by  his  Confederate,  and  that  he  was 
in  a  greater  danger  to  lofe  than  his   Companions,  k 

•  If  one  part  ^^^"  ftudies  to  retire  *  and  to  make  his  accord  apart,  as 
hath  violated  did  the  Venetians  with  the  Turks ^  after  the  lofs  of  Cyprus. 

the  League, 

the  other  may  depart  from  it ;  for  the  feveral  Heads  of  the  League  have  every  oae 

the  force  of  a  Condition,  fo G^/-(?//«j  conceives,  /.  2.  c.  13.  §.  15. 

Soluti firderis  XXll.  The  Ordinary  caufes  of  the  Rupture  of  U(i^^^^ 
'rtrl"'^'''  ^^^  ^^-^^"^  zr\djealoufy,  as  if  one  hath  had  conference  with 
'^l/lrJZlTws  ^^^  Enemy,  without  the  confent  of  the  reft  j  if  that  which 

/e  confer  unt,  fefVeth 

:hap. VII.  jat>f  Kleasttegi  bv  aintance  equals  1 27 

;rveth  for  the  fafeiy  of  one^    diminifh  the  fafety  of  the  ffdquiquam 
\htr  inconftancy^    variety,  cowardice^    divifion^  ufurpation  J"*'"^^' P''°^''f^' 
ythout  the  confent  of  the  others.  Zl pTJfiant, 

So  if  he  treats  with  the  Enemy,  not  comprehending  ^///5/ «/)«^ 
le  other  Allies^  but  as  Adherents  ;   as  Lewis  the  Twelfth  eundem,  ft  <vel 
:ftthe  League  of  the  Venetians y  for  that  they  had  made  ^^i^f^'^^^l^^i 
Truce  with  him,   and  had  prefumed  to  name  him  only  teruirairfnf 
J  an  Adherents     It  was  the  opinion  of  Bryan,  that  if  all  grederetur, 
le  Subjects  of  England  would  make  War  with  a  Confede-  rupta/org 
jte  Prince  or  Republick  m  League  with  the  King  of  Eng-  cyd'^/zl^r 
md^  without  the  aflent  of  the  King  of  England^    fuch  a  i^e.  \.  Vide 
Var  was  no  breach  of  the  League  ;  and  upon  the  fame  ^tat.  2.  H.  ^, 
;afon  were  the  refolutions  of  the  Judges  in  the  Duke  of  ^-  .^• 
lorfolk's  Cafe,    where  the  Queftion  was.  Whether  the  ff^  \^'^^^ 
.ord  Herife  and  other  Subjecfls  of  the  King  of  Scots,  that  Duke  of  Ncr- 
'ithout  his  affent  had  wafted  and  burnt  divers  Towns  in /c/^'s  Cafe.  4. 
■»f/W,  and  proclaimed  Enemies,  were  Enemies  in  Law,  ^^ft-fi^-  ^S^* 
ithin  the  Statute  of  25^.  3.  the  League  being  between 
le  Englijh  and  Scots,  and  refoived  they  were,  and  that 
le  League  remained. 

XXIII.  The  Succours  that  one  Confederate  muft  afford  ^'£^^,'^^. 
nother  (Confederate   (according  to  the  haw  of  Leagues)  Etfi/ci'vero  ' 
gainft  a  Confederate,  is  of  great  Confequence  :    Three  'velUteali- 
'finces  allied,  the  one  makes  War  againft  the  other,  and  q'^^^f^ji^P  of- 
emands  fuccours  from  the  third  ;    in  this  Cafe,  if  the  ^^^  ^^^J.        , 

r    AIT  1  1      r       T-.  •       7/7  •        •      •  •     generaltter  1361 

reaties  or  Alliance  be  only  lox  Friendjbtp,  it  is  CQn2i\njpecialiterfue' 
e  is  not  bound  to  give  any  fuccours  :  But  if  the  Treaty  ro  requijitus, 
irries  an  offenftve  League,  he  muft  fuccour  the  moil  an-  ^^"^^  ^''^^''  /- 
'ent  allied  by  a  precedent  Alliance,      If  the  precedent  Al-  TlnT*     • 
ances  have  been  made  both  at  one  time,  he  mult  luccour  Hum.  Orat, 
im  that  is  allied  in  an  offenfive  and  defenfive  League  :  Demofthen. 
iutif  the  League  be  offenfive  and  defenfive  of  either  fide,  '^^  MegahpolL 
t  ought  not  to  fuccour  either ;  but  he  may  mediate  a  *  Peace,  ^'^ihilinurce- 
nd  caufe  the  difi^rence  to   be  judged  by  the   Common  f^,Zi"ppuh 
tllies,  which  being  propounded  with  a  Declaration,  that  pads  bellique 
■  one  refufe,  or  having  once  fubmitted,  will  not  yield  to  Hhenim  arbi- 
udgment,    he  will  fuccour  the  other,  as  the  Swede  znd^p''"'^^-^!'^'- 
^[s,^  upon  feveral  occafions  have  done  ;  notwithftanding  j^  j^f^  j^^n^ 
^  point  of  State  on  fuch   occafions  they  ufually  balance  ^r>^aV //^. 
iieirEftate,  and  looking  more  to  fafety  than  Juftice,  they  2.  cap.  15. 
Jccourhim  who  beino;  enforced,  may  weaken  the  power-  tv^^'  ^^"^t. 

Ill     nrU^    •  t        r  1  •    rL  TTT  1      "     Monmcuth  Hi- 

^1)  Who  IS  more  to  be.,  feared  ;    yet  to  unjuft  Wars  there  ftoryofivw/c^ 

is/5/.  31. 

128  ©f  iteagteegi  hv  ^iiianct  equal*    Book  i. 

is  no  obligation  5  then  certainly  he  ought  to  be  preferred 

who  hath  a  juft  caufe  of  War. 

XXIV.  By  the  Laws  of  Alliances  Princes  may  dX^Ur- 

ticular  and  common  Allies^  if  they  be  v/ronged  by  one  of 

the  Allies. 
Equals  cannot      But  he  which  is  not  comprehended  in  the  Treaty  of 
w'f  ^  nor  de""  ^^^^^"^^'    ^^""^^  ^^  defended  againft  him  thdt  is  * 
mand  Peacer  ^^^^0"^:  breach  of  the  Alliance ;    therefore*  Mediation  in 

fuch  cafes  is  the"  only  hopes  of  the  oppreffed^  which  not 

having  its  efFed,  if  the  cpprejjed  put  themfelves  into  tfe 
tZ' tl' exVr'p-  pi*oted:ion  of  the  Mediator,  they  then  become  in  the na- 
th  Legationum  ture  of  his  Subjedls,  and  then  their  Prince  is  obliged  to 
35.  t\it\r  fuccour  and  defence^    even  againft  his  Allies^  and  this 

is  by  natural  Right. 
When£//-  XXV.  By  the  Laws  of  Leagues,  though  the  Oath  binds 

Wth  was  ^"^^  ^^^  P^r/^/?,  yet  the  Promife  binds  the  Succeffor  ;  for 
chafed  out  of  ^^o^gh  fome  do  hold,  that  Leagues  do  depend  upon  the 
the  Kingdom,  Oath  as  their  Firmament,  though  that  is  not  fo  for  the 
and  Henry  the  moft  part,  yet  the  efficacy  of  fuch  Leagues  refts  in  the 

«P  agaTn ;  ^'et  ^^^"^"^^  '^-^'^^^  P.  ^^^^^  ^°^  Religion  fake  the  Oath  is  ad- 
by  Reafon  ^^^-  Hence  it  is,  that  Promifes  made  to  a  Free-peoplem 
there  was  in-  in  their  nature  real^  becaufe  the  Subje6l  is  a  permanent mt- 
ferted  into  the  Ur  ;  although  the  State  or  Republick  be  changed  into  a 
v/Z\f'%th  ^^^^'^^h:>  yet  the  League  remains,  for  that  the  body, 
ihe  King  and  ^'  ^'  ^^^  power  is  ftill  the  fame,  though  the  Head  be  chang- 
M:ea/m,  that  cd.  And  the  Perfon  is  infcrted  into  the  agreement,  not 
the  League      that  the  agreement  may   be  perfonal,    but  to  (hew  wii 

tfrpQ^^l  ^^^^  ^^  ^^  ^^^^  '  ^^^  ^^^^  ^^  inferted  into  the  League  th 
I'hit.  Comines  ^^  ^^^^  ^^  perpetual,  or  that  it  is  made  for  the^^^^  oflhi 
lib.  3.  cap.  6.  Kingdom,  or  with  the  Perfon  and  his  SuccelTors,  or  for  2 
Ulpian.  Leg.  time  limited,  the  fame  does  moft  apparently  demonftrate 
i-T?'f"'^'  the  thing  to  be  real. 


Addequa  Hehetiis caufantur poji  mortem  Hen.  3.'«/»^Thu3num,  lib.  97.  in  An.  IJ89. 
Vide  ^  itijignem  locum  apud  Cambden.  in  Anno  1C72.  ubi  de  Fee  dire  anticuo  Gd 

However,  in  all  Leagues  which  tend  to  Peace^  though 
there  may  remain  fomewhat,  whereby  words  of  ambi- 
guity may  arife  ;  yet  the  moll  pious  way  of  interpreting, 
hath  been  to  account  the  fame  rather  real,  than  perfonal) 
for  all  Leagues  made  for  Peace  or  Commerce,  admit  of » 


'N'lvourable  conflruclion.    Leagues  defe^ve  have  7ncre  of 
wour^  offerifive  of  burthen. 
..   XXVI.    Leagues  made  with  Princes^    although    thtj  ^htus(^A^ 

happen  afterwards  to  be  driven  out  of  their  Kingdoms  to  Nahis,  We 
■  ly  theif  Subjects,  yet  the  League  remains  firm  and  good  ;  ^^ysniadeno 
>  dx  the  Right  of  the  Kingdom  remains  with  fuch  an  unfor-  ^^^j.  society 
anate  Prince,  notwithftanding  he  hath  loft  his  Kingdom  :  vyitaihca,  but 
The  Prefident,  Canon,  and  Plenipotentiary  for  the  Duke  with  Pehps 

^\)i  Lorraine  at  the  Treaty  of  Nimeguen,    r^enewed  his  in-  ^^^^  ^  ^. 

sJlbaces  with  the  French  AmbaiTadors,  that  he  might  ob-  ^^^-^^  j^ace- 
ain  feme  moderation  of  i\\Q  Conditions  that  had  been  damonians. 

oil  lipulated  for  his  Mafter  •,  the  Emperor  did  the  like,  but 

I  mthout  fuccefs ;  however  the  Duke  would  not  negle(5l 
"  iny  thing  that  might  give  the  French  King  frelli  Evidences 
jr'  his  defire  to  merit  the  Favour  of  his  IVIajefty,  he  got 
Sir  Leoline  Jenkins^  and  the  reft  of  the  Mediators,  to  de- 
clare to  Monfieur  Colbert^  that  the  Emperor  had  taken 

)l  into  his  Service  all  the  Lorraine  Forces  \  and  in  the  pub- 
lick  Declaration  which  the  Duke  made  at  Nimmegv.en^  he 
faid,  Tihat  he  had  delivered  all  his  Forces  to  a  Prince  at 
Peace  with  France,  that  he  might  raake  it  appear  to  the  King^ 
that  though  he  was  expelled  his  own  Dominion^  yet  he  would 
do  nothing  that  might  give  his  Majcfiy  ground  to  deprive 
him  of  the  honour  of  his  favour  :  And  notwithftanding  all 
thefe  moft  fubmiffive  offers,  this  unfortunate  but  gallant 
Prince  was  fiiut  out  of  that  famous  Treaty,  which  put  an 
end  to  a  War  wherein  almoft  all  the  Princes  of  Europe 
were  engaged.  On  the  other  hand,  L^eagues  made  with 
the  Invader  cannot  be  good  •,  for  his  caufe  being  unjufl^ 
is  odious  :  but  if  *  the  People  will  make  him  King  de  *iiH.7,c.i: 
fa5io^  and  inveft  him,  the  queftion  is  then  out  of  all  con- 
troverfy  •,  for  then  he  is  becom.e  a  King  regnant^  and  by 
the  Laws  of  England^  if  Treafon  be  committed  againft  -:■ 

his  Perfon,  and  f  after  he  is  beaten  out,  and  the  King  f  4E.  4.  i: 
de  Jure  comes  to  his  Crown,  the  King  de  Jure  may  pu-  9  ^-  4-  '2- 
nifh  thofe  Traytors  with  death.  3-  ^¥->^-  7- 

The  Earl  of  Warwick  having  raifcd  an  Army  in  France 
and  Flanders^    invaded  England,  and  within  five  or   {\yi  ^'^  4- '«  ^^* 
days  after  his  landing,  Kin^  Edward's  Forces  betraying  H7o- 
■him,  the  Earl  became  Mafter  of  the  Realm  •,  the  King 
flying  for  protection  to  his  Kinfman  the  Duke  of  Burgundy^ 
he  kmdly  in  his  mi&fortunes  entertained  him  j  yet  while 

I  he 

130  S)f  %ta%m$  ht  MUamt  equal  Book  i. 

he  was  in  this  baniflied  eftate,    the  Duke  of  Burgundy 

renewed  the  League  with  the  Englijh^  it  being  agreed, 

that    notwithftanding   King    Edward's   misfortune,    the 

League  remained  firm  and  inviolable  between  the  Duke 

Pbii.  Comities  Charlss  of  Burgundy^  and  the  King  and  Realm  of  Eng- 

/.  3.  c.  6.       i^,^^  ;    So  that  for  Edward  they  Ihould  name  Hoiry  (who 

was  newly  taken  out  of  the  'Tower  by  the  Earl  of  Warwick^ 

Reges  qutreg-  at  his  chafing  out  of  King  Edward),      Now  the  true  rea- 

tiis  exiutfunt    i^^^  j.j^^^  ]Leao;ues  remain,  and  are  firm,  notwithftanding 

lonis  eiiamjus  ^^^^  ^  cliange,  is,  bccaufe  there  goes  along  with  them  a 

leganji perdi'    tacit  Condition,   viz.    of  holding  their  pofTeflions  ;   and 

derunt.  therefore  the  World  wondred  not,  that  Charles  II.  having 

fworn  a  League  with  the  King  of  Spain^  exprefsly  as  he 

was  King  of  Portugal^   did  notwithftanding  receive  two 

Ambajfadors  fi-om  the  then  new  King  of  Portugal ;  and 

that  without  being  judged  either  in  England  or  Spain  to 

have  broken  his  former  Oath  and  League. 

The  Duke  of  Guife  having  formed  the  League  againft 
Henry  the  Third,    which  was,  in  regard  the  King  was 
fo  cold  in  the  ProfefTion  of  the  Romijh  Faith^  that  it  was 
in  danger  to  be  cxtinguifhed  by  the  increafe  v/hich  he  per- 
mitted of  the  Reformed  Religion,    efpecially  feeing  Henrj 
the  Fourth  then  King  of  Navarre  was  of  that  Religion, 
and  was  to  fucceed  to  the  Crown  ;  wherefore  by  the  Me- 
diation of  Philip  the  Second  of  Spain^    the  Pope  qualified 
the  Duke  of  Guife.,  Head  of  that  Catholick  League.,  and 
Peter  Mat-      (Which  in  point  of  Government  was  to  fet  him  above  the 
ot/vl^fln^  King)  avowed  him  ProteEior  of  the  Catholick  Faith  in  the 
the  Life  of     Kingdom  of  France.     When  Henry  the  Fourth  fucceeded 
Henry  HI.      to  the  Crown,  then  this  League  for  fecurity  of  Religion 
was  moft  violent,  and  the  Spaniard  without,  hoped,  by 
nourifhing  thus  the  divifion  within,  to  carry  all  for  himfelf 
at  laft.    To  avoid  which  gin,  and  to  anfwer  all,  the  King 
changed  his  Religion,  and  negotiated  by  d^Offat.,  to  be 
received  by  the  Pope  as  a  dutiful  Son  of  the  Church  of 
^  Rojne^  demanding  abfolution  for  what  was  paft,  and  mak- 

ing large  promifes  of  due  obedience  for  the  time  to  come. 
The  King  of  Spain's  intereft  was,  that  he  fliould  not  be 
received,  and  thereupon  he  endeavoured  to  perfuade  the 
Pope^  that  King  Henry  did  but  diflemble  with  him,  and 
that  under  this  Difguife  he  would  eafilieit  ruin  the  Rcmijh 
Religion  :  Notwithdanding  this  the  Cardinal  obtained  hi? 



Chap.vii.  SDf  %ta^ut&  hv  MUanct  eaimL  13 1 

Reception,   Abfolution,    and   Benedi(flion,    through  the 
niany  Promifes  and  Prefcnts  which  h^:  made  to  H^s  HoU- 
nefs ;  whereupon  the  Spaniard^  Defigns  w^re  in  a  Moment 
all  blown   over  from  France,  but  fell  heavily  upon   the 
United  Provinces,  which  were  forely  opprtflied,  for  that 
they  apprehended  the  Lofs  and  Ruin  of  their  Country  5 
and  thereupon  they  implored  AfTiflance  from  King  Henry^ 
who  received   their   Amballadors  very   graciouily,    and 
gave  them  Afliirance  of  Relief.     The  King  of  6'/'^/;/,  who 
wanted   no  good  Intelligence   in   the   Court  of  France, 
immediately  remonftrated  to  the  Pope^  That  his  former 
Intimations  concerning  Henry^s  DiflTimulations,  did  now 
appear  in  the  Face  of  all  the  World  ;  and  that  feeing  His 
Holinefs  had  been  fo  credulous,  he  knew  not  now  whether 
they  fhould  be  able  to  fave  the  Catholick  Faith  from  being 
fubjeded  to  the  i?c/'^r;;?^i Religion  or  no:  for  whereas  the 
Hollanders  had  revolted  from  him,  only  becaufe  he  re- 
folved  to  ufe  the  true  Means  for  the  Eilabliiliment  of  the 
RomiJJj  Faith  among  them  ;  and  that  now  he  was  in  a 
fair  way  of  reducing  them  (which  conduced  fo  much  (by 
His  Holinefs  his  Opinion)  to  the  Eitablifhment  of  the 
Romijh  Faith)  Henry  had  taken  their  Party  againft  him  ia 
that  Work  \  and  that  at  Paris  he  had  received  their  A m- 
bafladors  to  that  Purpofe,  although  he  knew  they  were  his 
lawful  Subjeds,  ^c. 

This  ftartled  the  Pope  not  a  little,  who  charged  d^OJfat 
for  having  betrayed  him,  and  put  the  Church  in  Danger. 
This  Argument  was  as  fubtile  on  the  Spaniard's  fide,  as 
changing  Religion  was  on  King  Henry^^  ;  and  therefore 
the  Cardinal  v/as  not  a  little  perplexed  how  to  anfwer  ic 
to  the  Advantage  of  his  Mailer  •,  as  alfo  coheremly  to  the 
Confiderations  of  his  former  Reception  into  the  Church: 
But  at  laft  he  replied,  That  Plis  Holinefs  needed  not  won- 
der how  in  reafon  of  State,  thofe  different  Religions  might 
join  together  for  political  Ends,  without  Hazard  of  alter- 
ing Religion.  Thus  David  fought  Protection  of  the  Phi- 
liftines,  and  Abraham  redeemed  the  iinful  Sodermtes  That 
he  took  it  to  be  upon  the  fame  Ground,  that  Flis  Holinefs 
himfelf,  not  long  before,  received  a  Per/tan  Atnbaffador, 
who  was  fo  fir  from  being  a  Heretick,  that  he  never 
pretended  to  the  Name  of  Chriftian  :  That  it  was  a  plau- 
fible  Argument  which  the  King  of  Spain  ufed,  in  cqm- 

I  2  plainin 


Fide  Peter  plaining  of  Henry^s  receiving  and  avowing  their  AmbafTa- 
miof '^f  '^°^'  ^^P^^^^^^ly  l<-nowing  at  the  fame  tinne  that  they  were 
France  in  Vita  Rebels,  and  could  pretend  no  Right  or  Title  feparate  from 
Hen.  4.  his  Crown  :  "  For  Princes  (quoth  he)  when  AmbafTadors 

In  Regno  di-  cc  ^j.^.  addrcfled  to  them,  never  inform  themfelves  of  the 
Z{\fmLir'  "  ^^B^^^s  and  Title  of  thofe  Princes  from  whom  they  are 
quafi  du<£  gtn-  "  f^Ht ',  but  whcthcr  they  have  Poffeflion  of  the  Force  and 
tes  habent'ur :  "  Powcr  of  thofe  Placcs  from  whcncc  the  AmbafTadors 
And  Princes  <t  ^.g  employed  ;  for  it  would  be  an  endlefs  Talk,  and 
an^Eye^Tthe  "'  require  an  infallible  true  Hiftory  of  the  World  (which  is 
Power  which  "  not  to  be  made  by  Man)  if  all  the  AmbafTadors,  be- 
each  King-  '^  fore  their  Reception,  fliould  be  obliged,  firft  to  prove 
"^^"^^^R  ^'  ^l  "  clearly  to  the  World,  the  jufl  Right  by  which  their 
one  to  the  "  Mafters  derive  thofe  Titles  and  Jurifdiclions  which 
other,  and      "  they  afTume  to  themfelves." 

not  to  exa-  XXVII.  And  as  Leagues  are  Covenants  or  Agreements 

inine  their       inade  by  command  of  the  higheft'  Powers,  wherein  the 
Parties  are  bound  over  to  the  Divine  Wrath,  in  cafe  they 
break  their  Faith  ;  it  hath  been  a  famous  queftion,  Whe- 
Coke  3.  injiit.  ther  they  may  be  entred  into  which  thofe  that  are  Aliens 
foU  155.         from  the  true  Religion,  whereof  by  the  Law  of  Nature 
there  is  no  doubt  nor  difficulty  ;  for  that  Law  is  fo  com- 
mon to  all  Men,  that  it  admits  not  any  difference  of  Reli- 
gion ;  but  xh^  queftion  is  about  the  Law  Divine,  out  of 
which   it  hath  been  difcufTed,  not  only  by  Divines,  but 
Grot.  Lih,  2.  famous  Lawyers,  as  Oldradus.^  Decianus^  Grotius  ;  upon 
cap.  15.  §.8,  j-|^g  whole  they  have  agreed,  that  they  may  be  entred  into 
^'  ^°'  as  well  with  Princes  Infidels  as  Chriftians  :  and  that  is 

evidently  proved  ;  for  that  before  the  Law  of  Mofes  it  was 
lawful  to  con  trad  Leagues  with  Aliens  from  Religion  for 
an  inofFenfive  and  harmlefs  behaviour,  as  that  of  Jad 
with  Laban  :  nor  did  the  Law  of  Mofes  make  any  change, 
the  example  of  the  Egyptians  being  exprefs  in  the  point. 
'Tis  true  thofe  feven  Nations  and  other  Kingdoms,  as  the 
Amakkites^  that  were  deftinated  by  Divine  Sentence  to  be 
extirpated,  were  excepted  ;  but  Leagues  of  Commerce, 
and  fuch  as  pertain  to  the  utility  of  both  Nations,  or  ot 
either  Party,  are  by  the  Law  permitted  with  the  profane : 
So  David  and  Solomon  made  League  with  Hiram  King  of 
the  Tyrians  \  and  that  which  is  very  obfcrvable  in  the  Sa- 
cred Hiftory,  of  that  Adion  it  is  laid,  That  the  Alliance 

wai  made  by  Solomon  according  to  the  Wifdom  v/hich  God 


chap.vii.  j©f  Uta^ms  bv  Mtance  equaL  133 

jihad  given  him.     'Tis  very  true,    the  Jews  were  generally 
I  very  cautious  of  con  trading  with  Idolatrous  Princes,  and 
;Ithe  Reafon  was,  for  that  they  had  exprefs  Promifes  of 
'I  Victory,  but  that  was  conditionally,  f.  e.  if  they  kept  the 
iLaw,    which  if  performed,  they  had   the   lefs   need  of 
'human  Aid.     But  now  under  the  Gofpel  fuch  contrads 
1  have  a  more  favourable  Admittance,  according  to  that  of 
i  ^ertulli^n  :    So  long  as  Ifrael  (?;^/y  was  his  people^   God  did  Lib.  j.  cap. '^', 
jufily  comwand  mercy  towards  their  Brethren  alone  \  hut  after  ^"''"^  ^-^5^- 
\  that  he  gave  unto  Chrift  the  Nations  for  his  Inheritance.^  and  p^^tores  h/*' 
the  Ends  of  the  Earth  for  his  poffeffion  ;  and  that  began  tp  be  Reges  Chrijii-, 
paid  which  was  promifed  in  Hofea,  Tihey  that  were  not  my  ^»^'  F(£dera^ 
feople  foall  he  my  people,  and  the  Nations  that  had  not  obtained  ^!^!i^  ^°^ 
mercy  jhall  obtain  mercy  ;  from  that  time  Chrift  hath  extended  autcumnmfa. 
unto  all  the  haw  of  Fraternal  Benignity.,  excluding  none  from  ne  Chrijiianis 
our  compajion  no  more  than  from  his  Vocation  \  and  therefore  fic^re,  Con- 
!  as  it  is  no  evil  to  do  good  to  the  profane,  fo  neither  is  it  ^Q^'ly^^y 
unlawful  to  implore  their  help,  as  Paul  invoked  the  Aid  dalh,  Jufil." 
Qt^Ccefar  and  the  Chief  Captain  •,  fo  that  at  this  day  there  »/««///  cum 
is  no  intrinfical  or  univerfal  Pravity  ;     neverthelefs  thofe  Lon?obardis, 
Alliances  have  their  Circumflances  or  Rules  of  Govern-  Sl'^f:^'^!!' 
ment,  as  not  to  join  with  them  but  in  extreme  neceffity,  ^^orius  ^  cum 
according  to  that  of  *  T^hucydides  :  They  that  are  treache-  Mauris  Reges 
roujly  ajfnulted.,  as  we  are  by  the  Athenians,  are  not  to  he  H'lfpani^.cum 
blamed.,  ^f  they  feek  for  fafety^  andfecure  themf elves  by  the  aid  J^/J^'^'/rfl' 
not  of  GvQQks  0/?ly,  i*^/ Barbarians.  fpurgenfzs,  Adi 

Johannem  de 
Carthagtna  /.  3.  de  Jure  Belli  Romani  Ponttjicis  c.   I.   Julius fecundus  Poniifex  Turcis 
ufuSf  Fide  Buljirod  part.  ^.  fol  z%.  cited  in    I^ Jar/he's  Cafe,   the  Cafe  of  Samuel  Pellagy 
that  had  been  Ambairador  to  the  States  q{  Holland  to  treat  with  them  from  the  Emperor 

o{  Morocco. 

*  Famous  was  the  Piety  of  Emanuel  Duke  of  Savoy ^  who  when  he  was  ahic  to  tak» 
Cyprus  by  the  aid  of  the  Great  T/#ri,  refafed  it. 

I  3 


[  134] 

CHAP.'     VIII. 

sEiDf  3Uiance^  wnequai.  ant)  g£  ptcttctm, 

I.  Of  Alliances  unequaL  in  reference 
to  the  ackno^vjiedging  a  Superiority 
or  F rote  "ion  in  another. 

II.  Of  ProteFiions  by  a  Prince  or 
State  'voluntary  or  mercenary. 

III.  Of  the  Con'veniences  of  fuch 
Alliances^  hoiv  confidered. 

IV.  Of  the  Duty  imumhent  on  the 
f  rote  Bed,  and  the  obligation  in  Ho- 
nour and  f  if  ice  on  the  FrofeBor. 

V.  Of  Alliances  unequal,  and  of  the 
ordinary  Caufes  that  may  tend  to 
a  Rupture  of  the  fame. 

VI.  Of  the  Ccuje\  extraordivar'f 
that  may  occafon  the  Breach  of 
fuch  Alliances. 

"VII.   Of  Faith  and  AJ/urance  im- 

flicitly  difcharged  by  the  delii'er- 

ing  of  Hojiages. 
V 1 1 1 .   Of  the  Diff'erences  of  Leagn  e.s 

(ontraclcd   by    Pri?2ces,      through 
force  or  fear  y  differing  from  Cou- 

ira5is  pri-vate» 

IX.  Of  Ambiguity  in  fviords^  honuit 
halh  gi'ven  occafon  to  Princes  to 
depart  from  the  Lmgue,  andoftht 
Reputation  of  Princes  on  fuch  oc- 
cafon prefsr'ving  the  Alliance. 

X.  Of  the  Firmnefs  and  Affurance  of 
Alliances f  ^whether  to  he  fcmd 
more  in  Princes,  or  in  Repub- 

XI.  If  one  Party  hath  violated tU 
League y  nx:hether  it  be  lan.fulfer ' 
the    other    to    depart  from    thi 


XII.  In  the  Conjlruclion  of  LeagueSy 
the  l^houghts  not  the  Words  of 
Frances  to  be  confidered. 

XIII.  Of  things  ta  i  ly  except d  in 
all  Leagues  and  "Treaties^  in  reft' 
rence  to  their  nullity. 

XIV.  Of  things  faa)Our able y  things 
odious,  and  others  of  a  mixt  na- 
ture to  be  ufed  in  the  interpreting 
of  Leagues. 

Rhodius  pofi 
€tmicitite  inter 
partes  hoc  ait 
proprium,  ut 
potent  iori  plus 
honoris,  in  fir- 
sniori  plus 
Guxilii  defe* 
ratur.  Grot. 
lib.  I.  c.  2.  §. 
21.  n.2.  It  is 
the  property 
of  Fri«ndftiip 
''t'.vixt  ur.e- 
ciial:\  :l:ac  thQ 

I.  T  TNequal  Alliance  is  that  which  is  contradled  be- 
\^  twixt  Princes  or  States  unequal  in  Honour^  or  in 
Powery  with  unequal  Conditions,  the  acknowledging  the 
other,  nat  for  Majhr  or  Lord,  but  by  Honour  as  the  more 
powerful,  and  the  better  qualified,  and  fome  for  Pro- 
teffor  *,  and  thefe  Treaties  are  made  with  thofe  States, 
which  take  or  give  Penfion,  or  which  put  themfelves  in- 
to Proteffion,  And  fuch  was  the  League  of  *  Prote6lipn 
propounded  to  Queen  Elizabeth  by  the  States-General  of 
the  United  Provinces,  who  by  Jcos  Van  Menin  moft  hum- 
bly befought  Her  to  accept  of  the  Sovereignty  and  Su- 
preme Dominion  over  the  faid  United  Provinces  upon  cer- 
tain and  reafonable  Conditions  and  Articles,  ^r, 


i.'HAP.viii.  ©fKLeaguegB^tiitaitce unequal.      13^ 

•onger  have  more  Honour,  and  the  weaker  have  more  Flelp  :  Procu/as  zdds  that 
IchaClaufe  is  inferted  in  the  League,  to  fignify  the  one  is  fuperior  in  Authority 
I  id  Dignity,  for  both  are  free,  but  are  fuh  pafricinio,  mn  fuh  didione.  Liv.  lib,  'ifj, 


*  Hon  fine  netu  in  pofierum,  quern  tunc  prafens  necpjjitas  averterat.  Grotius  AnnaL 
11.  c.  A.  E.  Mi  tor  an.  lib,  13.  ad  An,  1585.     Grimjion,  lib.  12.  ad  An,  1585. 

Tribute  is  paid  by  the  Suhje^,  or  by  him,  who,  to  en- 

y  his  liberty,  pays  that  v/hich  is  agreed  upon  to  him 

lat  hath  forced  him  to  do  it.     But  a  Pen/ion  is  held  volun- 

!  ry  from  him  that  is  in  Protections  or  from  him  that  is 

I  all  other  things  equal  to  the  Treaty  of  Alliance  to  hinder 

iie  Penfioners  that  he  join  not  with  the  Enemy,    as  the 

I  wifs  to  the  Frenchy  or  to  have  Aid  and  Succours  from 


I  II.  But  that  ProteElion  is  moft  true  and  hcnourable,  Leg.  non  duhitl 

hen  a  Prince  or  Republick  takes  upon  him  thedefence  of  ^«  ^s  Ca^, 
lother,  freely  without  Reward \  though  fome,  if  not  all, 
nd  it  mofl:  neceflary  to  balance  Honour  with   Profit, 
•oni  this  Maxim,    that  A  pecuniary  inter  eft  obliges  more  to 
iccoury  than  when  barely  obliged  by  Oath. 

III.  Again  there  feems  to  be  a  kind  of  ProtcBion  or 
n  Alliance,  which  indeed  is  no  more  than  a  bare  pe- 
uniary  retaining.  Politicians  have  confidered  the  Sub- 
let diverfly,  either  Abfolute  or  Conditional  *,  Abfolute 
J  that  which  is  meafured  by  the  concurrence  of  the  great- 
.efs  of  Forces,  Treafure,  Munitions,  and  other  Military 
^reparations  :  Conditional  is  that,  the  which  although 
c  be  lefs  than  an  abfolute,  yet  is  more  fit  to  fuccour  us 
ir  do  us  Harm  :  In  this  the  Neighbourhood  is  of  very 
^reat  confideration  ;  for  that  a  Neighbour  Prince  of  mean 
forces  may  more  eafily  hurt  or  fuccour  us,  than  a  great 
Prince  that  lies  far  off;  near  Succours  are  always  fooner 
•eady  and  with  lefs  Charge.  And  this  makes  the  Bifhop 
)f  Munfter  to  be  in  that  efteem  with  the  States  of  Holland 
md  the  other  Sovereign  Princes  borderins;  on  his  Terri- 
:ory  5  and  the  Reafon  why  he  is  fo  much  the  more  courted 
into  Afliftance  and  Friendfhip  is,  for  that  his  Forces  be- 
ing at  hand,  if  Peace  be  concluded,  he  is  the  more  eafily 
difpatched,  whereas  remote  and  abfolute  Princes  their 
fuccours  come  often  too  late  after  the  Occafions  to  defend 
us,  and  too  foon  to  opprefs  us. 

I  4  IV.  By 


136         fiDf  "jfLeafiiresi  tv  SlUtancc  uncquaL  Book  i. 

The  Genoejes  IV.  By  the  Law  Q^Prote^ion^  he  that  is  proteded owes 
IhJmfelv^  in  ^^^  ^C//'^^  and  Honour  to  his  Frotetfor,  againft  whom  if 
the  proteaion  ^e  confpirc  or  attempt,  or  ftrays  from  his  duty,  it  is  law- 
ofthefrr«f>^  ful  for  the  Protedor  to  make  better  ajjurance  %  nay,  if 
King,  revolt-  v»e  pleaffs,  to  make  himfelf  Mafter :  But  then  on  the 
^^^^^y^^^^^^  other  fide,  the  Protcdor  ought  to  defend  and  fuccour 
their  Conditi- ^h^  P^'o^^'^^di  and  ufe  him  well ;  for  otherwife  he  may 
ons  into  Privi-  withdraw  himfelf  from  the  Protedion,  and  feek  anotherji 

leges,  to  the 

end  it  might  be  his  Will  to  deprive  them  when  he  Taould  think  ^t.     Vide  Cardinal, 

Thu/c.  P.  P.    Cw;f/.\935. 

V.  In  Alliances  rhit  are  unequal,  there  are  four  kinds 
of  Controverfies  may  happen. 
This  holds  as      Firft^  If  the  Subjects  of  a  Prince  or  Republick,  that 
well  between   j^  under  the  Protedion  of  another  have  committed  any 

Leagues  equal    y  ■  .    n     i      t 

as  unequal,      thing  agaiiifi  ike  League. 

Grotius^<7«-      Secondly^  If  the  Prince  or  Republick  be  accufed. 

re  Belli  ac  Pa-      ^hir^ly^   If  the   Fellows,  which  are  under  the  protec- 

cis,  L  I.  f. 3.  j-Jq^  q^  j-j^g  j'^^j^g  Prince  or  Republick^  contend  with  one 

This  hath  the  another. 

fame  Right  in      Fourthly^    l^   the   Subjcfts    complain    of    their  own 

Leagues  that    Ruler. 

^NamV^'uis  ^^^  ^^^  •^^^^'  ^^  ^  ^'^"'^  appears,  the  Prince  or  Rc- 
uhhnemfumat  publick  is  bound  either  to  punifli  the  Offender,  or  to  ren* 
ab  eo qui pecca- <d^r  h\m  nulo  the  Patty  injured,  and  fee  or  endeavour 
wit,  Jatis  eji^   xhn  Damages  may  be  recovered. 

""^  '^''  ^* ffhdi'  ^^^  ^"^  ^^  ^^^  j/ociates  in  the  League  hath  no  Right  to 
tTs^mn  fit.  apprehend  or  punifh  the  Subjeds  of  his  Confederate. 
Grot,  de  Jure  To  the  fcccnd,  the  Confederate  hath  a  Right  to  com- 
BelliJ.i.c.o,.  ^q\  his  Confederate  to  fland  to  the  League,  and  if  he 
Burth-t^*  will  not,  to  punifh  him,  for  that  one  may  take  fatis- 
proves  not  a-  fadlion  cr  revenge  of  him  that  hath  offended  -,  and  this 
ny  power  of  happens  as  well  amongfl  thofe  that  have  no  Confedera- 

commanding,  ^J^n  at   all. 

lTuan"''Tr'  *^°  '^^  ^^^  '^^^*^^'  ^^  ^"  Confederacies  equal,  the  Contro- 
their  caufes  verfies  are  wont  generally  to  be  brought  before  an  Jffcfn- 
before  judges  hly  of  the  Confederates,  that  is  to  fay,  fuch  as  are  not 
of  their  own    concerned  in  the  Quelfion,  or  el  fe  before  y/r^//r<j?/^n,  or 

fT'^f't'  ^^^"^  ^"-^^^^^  ^^^  ^^^^^^  ^^^^^  Alfociation,  as  a  Common  Ar- 
2i.«,  6.  p^f^/bitrator. 


51  :hap.viii.  £)f  xcagtte^  hv  ainiatice  unmuai        137 

i\   So  on  the  other  hand  in  a  League  uneqiiaU  it  is  agreed  ^w  qui  Fade- 
or  the  moll  part,  that  the  Controverfies  be  debated  befoi-e  'Jf-'  ^^^^"P^i 

.  '        n  '  '.IT  jurii.       Circa 

lim  who  IS  Superior  in  the  League,  ^^^^  ^^.^^^ 

To  the  laft,    the  Confederates  have  no  Cognizance,     In  utilitates  nihil 

rommon  Affairs  out  of  tinne  of  AfTembly,  even  where /''•^">aa^ /«- 
v-\\e  Leaiue  is  equal,  the  Cuftom  is  for  him  who  is  chofe  ^^^^*  ^f  ^" 
tChiefofthe  League,   to  have  Command  over  the  Confe-  ^,^^^  ,^^^„^;^ 
II  derates,   according  to  the  Speech  of  the  Corinthians  in  eminere  fupra 
<'  Tbucydides^  It  becomes  them  that  are  Princes  of  the  League^  cateros.  In 
*'  ^Q^  to  feek  their  own  particular  advantage,    hut  to  content  ^!^^'  ^^'■^"- 
ii  themjelves  ivith  an  Eminency  above  the  refi^  in  taking  care 

of  the  common  Intereft. 

VI.  Though  that  the  Breach  of  Faith  be  much  prac- 
tifed  in  fuch  Affairs,  yet  there  are  few  Princes  found  which 
have  not  found  a  pretext ;  fome  have  pretended  to  be  cir- 

I  cumvented  by  error  ;  others  by  Change  of  Affairs  have 
!  have  pleaded  an  excufe,  as  great  Wrongs  or  inevitable 
Lofs,  and  apparent  danger  of  the  ruin  of  their  States^ 
which  are  the  Caufes,  wherein  ^bmt  fay,  that  an  Oath  is 
not  obligatory  -,  the  Condition,  by  reafon  of  the  Oath,  be- 
ing impoffible  or  unjull  *,  to  thefe  Limitations,  fbme  hold 
they  mud  not  keep  fiith  with  an  Enemy  of  the  Faith,  nor  QUrad  Confix 
with  him  that  hath  broken  his,  nor  with  a  Subject,  nor 
m\h  ^  Thief  OY  Pirate  ',  certainly  if  it  be  not  lawful  for 
a  Man  in  thefe   cafes  to  keep  Faith,  it  is  not  lawful  to 
give  it :  If  it  be  lawful  to  capitulate  with  fuch  Men,  it  is  Gre<>orius, 
necefiary  to  hold  what  we  promife,  that  is,  (we  prefume)  PerjuriumDeo 
when  the  word  is  given  by  him  that  may  give  it,  and  that  ^^^^p^^^  impin 
they  rely  upon  it.  gitnegligmia:. 

VII.  If  Hcftages  are  taken,  he  that  gives  them  is  freed 
from  his  Faith  ;  for  that  in  receiving  Hoflages,  he  that  re- 
ceives them  hath  relinquifhed  the  affurance  v/hich  he  hath 
in  the  Faith  of  him  that  gave  them  ;  fo  where  a  Captain 
for  his  Prince  gives  his  Word  without  Commijfion  it  binds 
not  the  Prince, 

VIII.  Some  Lawyers  would  judge  of  "Treaties  as  par- 
ticular ContraEfs,  by  which  means  they  would  ftretch  the 
Confciences  of  Princes  ;  for,  fay  they,  that  4is  a  private 
Man  is  not  bound  by  that  which  he  hath  promifed  by 
force  Q^  fear,  fo  it  ought  to  take  place  amongft  Princes  anA 
in  Treaties  which  are  made  betwixt  Sovereigns  ;  but  that  is 
ridiculous,  for  that  were  in  eff^^l  to  banilh  Faith  from  all 


138         ^f  )Leagttcjj  hv  ^ilianaumcimi  Book i. 

pnblick  Negotiations ;  for  there  is  no  Treaty  but  what 
is  ufually  made  in  j4rms  by  force,  or  through  fear  to  lofe 
either  Life  or  Goods,  or  Liberty,  or  the  Slate;  which 
are  caufes  o{  juft  fear,  and  may  fliake  the  moft  conftant. 

IX.  Some  Princes  defiroiis  to  fhew  themfclves  more/>, 
religious  in  thefe  Ruptures,  have  taken  fubjed  and  occa- 
fion  upon  the  Ambiguity  of  fome  Claufes  in  the  Treaty^  or 

Upon  the       upon  Equivocation,  as  Charles  the  Fifth  did ;  or  elfe  they  I 

words  Et'uing  fg^]^  other  Occafions,  as  attempting  againft  thofe  whom 

and  £«?;^.  to  their  Ally  is  bound   to  defend,  to  the  end  that  drawint^ 
retain   the       ,  .       ,      J   .       ^  i  ,      ,  77  r     r     i      1^  ° 

Landgrave  of  "1^1  mto  the  field,  hc  may  lay  the  cauje  oj  the  Rupture  on 
Bejfe.  him. 

But  Princes,  who  refpedl  fuch  Treaties  with  a  pious  In- 
tention of  preferving  them,  always  remain  conftant  and 
firm  -,  and  though  occafion  may  offer  itfelf,  by  which  they 
might  get  advantage  by  the  Breach ;  yet  when  they  re- 
main durable,  fuch  refpedl  is  afterwards  had  to  their  Word 
'  and  Honour,  that  fewer  and  lefler  fecurities  will  be  demand- 
ed of  them,  than  one  whofe  Faith  is  doubted. 

X.  But  AfTurances  in  cafes  of  this  Nature  have  been 
found  more  in  Republicks  than  in  Princes  ;  for  though  Re- 
publicks  have  the  fame  Mind,  and  the  fame  intentions  z% 
Princes,  yet  for  that  they  move  but  flowly,  it  will  caufe 

Famous  was  |.j-jgjYi  today  longer  in  refolving.  Famous  is  that  of  the 
th^  CarthaJi'  -^^^^^^^^^-^j  when  ^hemiflocks  in  his  Oration  told  them, 
titan  Senate  That  he  could  difcover  a  Matter  in  which  the  Athenians 
to  the  E.omans  would  reap  great  Advantages,  but  he  could  not  tell  it, 
upon  the  af-  f^j.  f^^j.  ^he  Difcovery  would  take  away  the  Opportunity 
^" '^^^^.°Yl^g]  of  atchieving  it:  whereupon  the  Athenians  deputed  yfr/- 
ther  Sagun-  JUdes,  to  whom  he  fhould  communicate  the  Secret,  and 
ium  was  af-  \^ith  him  fhould  confult  about  the  obtaining  it :  They 
faulted  by  pri-  irjeeting,  Themijlocks  demonftrated  that  it  w^as  in  the  Pew* 
lick  Council '  ^^  ^^  ^^^  Athenians  to  make  themfelves  Mafters  of  all 
we  conceive  it  Greece,  for  the  Grecian  Naval  Army  was  then  in  their 
Kottobemade  Ports  and  Protedion  ;  whereupon  Arijlides  replied,  ^he 
the  Queftion ;  y^^^  ^,^j  ^  Breach  of  Faith  :  But  it  was  anfwered,  //  bein^ 
ther  it^  was  af-  /^^  ^^^^  puhlick,  all  confiderations  of  that  kind  ought  to  k 
faulted  juftly  Iciid  afide  \  whereupon  Arijlides  being  called  by  the  People 
or  unjuftly ;  to  give  Report,  told  them,  "Themifioclesh  advice  was  ex- 
r7,  *°  ^^^'    ceeding  profitable,  but  difhonefiy  for  which  caufe  the  People 

lelves  an  Ac-        .     <.  r*  r  j  * 

eoun:  is  to  be  wholly  refuted  It. 

XI.  If 

MUn  by  our  Citizens,  whether  it  did  it  of  itfelf,  or  by  Commiflion  ;  with  you 
tW;  alone  is  difputable,  whether  it  were  a  violation  of  the  League,  or  no.  Li- 
t|J^.  31. 

XI.  If  one  party  has  violated  the  League,  the  other 
j J  ly  moft  certainly  depart  from  it ;  for  the  TranfgrefTion 
^,  the  Articles,  be  it  never  fo  little,  makes  a  Breach  of 
cj]^  Agreement^  unlefs  it  be  otherwife  prevented  by  Con- 
\\  'ion,  which  may  be,  by  inferting  into  the  fame,  *  thai  *  Grot.  /.  2. 
\\\'  every   Offence  it  may  net  be  lawful  to  depart  from  the ,^'  ^5*  §•  'S* 

5^11.  In  all  Leagues^  theThoughts  of  Princes  and  States  are  Infidequldfen^ 
(jii  be  confidered,  not  what  they  faid  ;  yet  becaufe  internal /^.'*'^»/^^^.^^^^ 
[J  ts  are  not  vifible  by  themfelves,  it  is  necefFary  that  fome-  ^^^'^"cfc^Te 
ijibat  certain  ihoiild  be  determined,  i.  e.  reduc'd  to  Heads  ofHc.  i. 
:j  •  Writings^  otherwife  there  would  be  no  Obligation  at 
\  i,  for  then  every  one  might  free  him.felf  by  affixing  on 
s  own  Words  what  ^txdt  he  pleafes.     Hence  it  is,  that 
J  the  Didates  o^  'Natural  Reafon,  he  to  whom  any  thing 
promifcd,  hath  a  Right  to  compel  the  Promifer  to  than 
hich  right  Interpretation  fliggefieth,   for  otherv/ife  the 
laticr  would  have  no  End.     And  as  the  reducins  of 
le  Treaties  into  Writing  makes  the  Agreements  plain 
id  obvious,  fo  the  m.utual  Advance  of  the  Minifters  pro- 
artionably  hallens  the  Accomplifhment.     The  Counts 
\vaux  and  Servient^  being  appointed  for    the  Treaty  at 
dunftery    as  they  paflTed  through   Holland^    they  enter- 
i   into   a    Confederacy   with    thofe    States,      wherein 
ach  Parry  reciprocally  did   bind  themfelves  by  Articles, 
ot  only  not  to  treat  of  any  thing  without  the  AfTent 
nd  Participation  of  the   other  Coilegue,   but   that  the  Monmouth's 
Treaty  fliould  be  carried  on  fo  equally,  as  if  one  of  the  ^^^^^L^\^ 
^arties  Ihould   fee   the  other's  Bufinefs  advance  further    ^^*'^^'''^  '^  ' 
han  his,  it  fhould  be  lawful  for  the  one  to  defire  the  other 
0  proceed  no  further,  till  his  Affairs  were  equally  ad- 
'anced :    which   Articles   bounding  the   Approaches  of 
ach  other,    foon  haftened  the    End   of   that   tedious 

XIII,  Again,   in  all  Leagues  and  Treaties  for  Peace,  ^ipromUtit 
-here  is  this  Exception  to  be  fuppofed  in  the  Contractors, 
ankfs  fome  new  Caufe  intervene,  gr  unieis  it  be  by  the  {;^,^', -f f^^^ 

default  lJir^  c^ufafu' 


140        ^f%taQm& iv Sintance unequal  Booki. 

fer've7iiat.  nijt  default  of  him  with  whom  the  League  and  Compadl:  is 
'•"t'c'T^r'fw'  made,  or  Affairs  continuing  in  the  fame  pofture  and  ftate 
Jio'iJaftlZf  ^"  which  they  were  at  the  Time  of  the  Contradl :  and  that 
paaio  i'ceJerisy  Saying  of  Ulpianus  and  Fom-poniiis  concerning  private  Com- 
rehu  ft  jianti-  pa6ls,  v'lz  That  an  Agreement  is  not  violated  from  "jdhkh 
G  til  d-^[u-  ^  ^^'^  recedes  upon  ajufi  reafon  and  motive  ;  is  by  Inter- 
Beiii/3.c.24,  preters  extended  to  National  Leagues  betwixt  Princes  and 

XIV.  In  the  Interpretation  of  Leagues  and  Truces,  there 
ought  to  be  a  very  great  Care  had,  in  regard  of  the  U- 
crednefs  of  them  •,  therefore  in  things  promifed  or  fecured 
by  fuch  Leagues,  fome  are  favourable,  fome  odious,  fome 
mixt,  or  of  a  middle  Nature.  Thofe  that  are  moil  favour- 
able, are  thofe  whofe  Words  tend  to  Peace,  not  to  War, 
whofe  Footfteps  leave  ever  behind  the  deep  Imprefllons 
of  Mifery,  Devaftation,  and  Poverty,  but  more  efpeci- 
ally  when  fuch  Leagues  are  made  for  F/ar  Defenfive  than 
qtherwife  j  but  thofe  are  called  odioitSy  which  hurden  or 
cpprefs  one  part  only,  or  one  more  than  the  other,  and  like- 
wife  fuch  as  tend  to  matter  of  Revenge  or  Punijhment, 
or  to  violate  fome  former  acls  or  obligations,  or  the  bring- 
ing in  a  change  or  innovation  of  what  hath  been .  confimly 
In  L.  mn  fof  fettled ,  and  ufed  before'.  Mixt,  as  v/here  a  Change  is  pro- 
fuvt.  D.  de  he-  pounded  ;  but  that  is  with  the  Sillers  of  Moderation  and 
gihus.  PeacCy  which  are  proportionably  good,  according  as  the 

Change  may  be  eileemed. Therefore   the  Standard 

Rule  is,    That   in  Leagues  and  Treaties  not   odious,  ik 
Words  are  to  be  taken  according  to  the  full  extent  and  prs- 
priety  of  popular  ufe  *,  and  if  there  be  more  Signification^^ 
the  largeft  is  befi :  On  the  other  hand  we  are  not  to  re- 
cur to  Significations  plainly   improper,  unlefs  otherwife 
fome  abfurdity  or  inutility  of  the  Agreement  would  fol- 
Videexemplum  low.     Again,  Words  are  to  be  taken  ever  more  ftridly 
in  L.  cum  i;/-  than  propriety  fuffers,  if  it  be  neceffary  for  the  avoid- 
^Zmm^'^''  ing  of  inequity  or  abfurdity.    But  if  there  be  not  fuch  ne- 
cefllty,  manifefl  equity  or  utility  in  the  Reflridtion,  we  are 
to  flay  them  within  the  narrowefl  Bounds  of  Propriety, 
unlefs  the  Circumftances  diffuade.     On  the  other  Hand 
in  Leagues  or  Promifes  odious,  even  a  figurative  Speech  is 
admitted  to  avoid  the  Odium,  or  burden  ;  therefore  in  do- 
nation ^  Remiffwn  of  one's  Righs^  Dominion^  or  Propertj, 

(jAP.viii.  jDf'iLcaffttejt  tv^iUmct  umami       141 

tiV  are  always  to  be  conftrued  to  thofe  things  which 

\  re  probably  thought  on,  and  really  intended.    So  Aids  Grotius  /il,.i: 

%id  Succours  promifed  from  one  part  only,  is  to  be  un-  ^^P- 16.  §.12. 

HJrftood  to  be  due  at  the  Charges  of  him  who  Jh all  ac- 

W^re  them. 

CHAP.     IX. 


'^,  )f  Creaties!  of  Cruce,  jijeutraltt^,  an& 


Of  Treaties^   the  ^various  forts.  I  VII.  Ho^v  prefer'ved  and  •punijhed 
Of  Rules  in  Cafes  doubtful.  J       by  the  Laucs  of  England. 

VIII.  Of    treaties  of   'Neutrality, 
the  'various  Sorts. 

IX.  Of  the    Advantages    of   the 

X.  In   Cafes  of  Necefjity  nxihere  he 
ought  to  declare,  and  for  'whom. 

I.   Of  truces  amounting  to  a  Peace 
T,    Of   the  Ad'vantages    hetijoeen 
treaties  of  Truce  and  Peace. 
.  When  promoted. 

I.   Whether   it    can    prejudice  the 
Pretevjions  of  the  Principal. 

TReaties  are  either  with   Enemies  or  Friends.,   or 
with  Perfons  which  defire  to  continue  Neuters 
'ith  us,  or  we  with  them. 

The  Treaties  which  are  made  with  our  Enemies  are  ei- 
ler  for  a  time^  or  perpetuaL 
Perpetual^  as  the  Peace  that  is  made  to  compofe  all 
ifferences,  and  the  War  that  is  undertaken  for  Conquefi^ 
r  for  Reparation  of  Injuries,  or  to  rejiore  the  Commerce, 

Treaties.,  which  are  made  for  a  time  with  our  Enemies, 
re  called  Truces  \  the  which  are  either  general.,  for  all  the 
Jtates  of  the  one  or  the  other  Prince,  for  all  Perfons,  and 
or  all  forts  of  Commerce  :  Or  elfe  they  are  particular^  for 
:ertain  Places^  for  certain  Perfons^  and  for  the  Commerce ^ 
ind  fometimes  no  further  than  a  bare  fufpenfion  of  Arms. 

A  Truce  is  an  Agreement,  whereby  though  the  War  Truce,  what 

:ontinue,  yet  all  Ad:s  of  Hoftility  do  for  a  while  ceafe ;  it  is. 

iOr  between  War  and  Peace  there  is  no  Medium,  it  is, 

I  and  may  be  called  a  War,  tho'  at  prefent  its  Operations 

[are  intermitted.      An    Habit  may  be,   tho'   at   prefent 

't  doth  not  operate*     A  Man   may  be  faid  to  be  v/ife 


142       M  Cixatfegf  of  Cruce  anb  jl!ieutrattt^BooKil 

or  prudent,    tbo'   he  be  afleep,   and  virtuous,  tho'  fc 

a  while  he  be  void  of  Adtion.     So  that  a  Truce  cannc 

Grof.  de  Jure  be  Called  a  Peace,  for  tho'  the  Fight  ceafe,    the  Wi 

Belli  ^  pads,  continues,     'tis  but  a    bare  Sufpenfion  of  the  Ads 

/Of.  $.£.21,    War. 

^*  ^*  II.  When  any  one  is  bound  by  Allimtce  not  to  mab 

P^jr^  or  Truce.,  without  the  Confent  of  his  Ally.,  and 
In  the  Truce  ^^^^^  Agreement  feems  doubtful,  they  add  in  the 
that  was  made  Treaty,  that  it  fhall  take  place  for  all  thofe  the  Con- 
between  Ed-oj.  traclers  fliall  Name,  and  they  fet  down  no  prefixed  time, 
the  Fourth  [^yj-  ^}^^^  it  Jloall  continue  till  he  refufe^  and  fome  reafondk 
^^^^^^^^  ^  time  afcertained  after 'y  as  that  which  was  made  betwixt 
there  was*  like  Charks  the  Eighth  and  the  King  of  Spain, 


made  for  Charles  Duke  of  Burgundy,  but  he  refufed,  and  concluded  a  Peace  for  himfeif 
apart,  being  angry  with  Edward  the  Fourth  for  making  the  fame.  Phil.  Comin*  hh.L 
cap.  40.  So  Len>jis  the  Eleventh  concluded  a  Truce  for  nine  Years  with  Edvmi 
the  Fourth  when  he  had  invaded  France,     Phil.  Comin.  lib.  4.  cap.  S. 

III.  Sometimes  a  general  Truce  holds  the  place  of  Fmt, 
as  that  of  a  hundred  years.  Such  Truces  are  commonly 
made  betwixt  Princes  that  are  equal  in  Pozver^  as  that  be- 
twixt Spaift  and  Portugal,,  and  will  not  quit  any  thin^of 
their  Rights  by  Peace  ;  and  yet  defire  to  live  quietly  in 
the  State  wherein  they  are,  fatisfying  by  this  Medium  lb 
point  cf  Honour. 

IV.  Treaties  of  Truce  are  many  times  lefs  fubjeftto 
Rupture  than  a  Peace,  which  is  mzdc perpetual  ♦,  for  Princes 
or  States  that  find  themfelve^  aggrieved  with  a  Treat)* 
that  is  perpetual,  feek  out  plaufiblc  Reafons  to  forfakeit, 
feeing  the  Grievances  cannot  be  otherwife  repaired;  bv: 
if  the  time  be  limited  and  expired,  they  may  purfuethar 
which  they  think  ought  to  he  granted^  and  other  may 
oppofe ;  and  i£  they  have  a  defire  to  continue  the  trm, 
there  is  nothing  fo  eafy  as  to  renew  it.  Hence  it  is  becoir^e 
a  in  State,  That  feeing  Treaties  are  grounded 
on  the  Inter efis  of  Princes  ivhich  change  with  the  time.,  itv 
7iecejfary  to  change  and  fettle  them  at  the  end  of  the  time,  cf 
to  break  them  off :  for  it  is  in  vain  to  truft  to  a '  bare 

*TIs  true,  the  "  V.  A  Truce  is  likewife  made  to  advance  a  Peace,  and  to 
Sixjedes  and  treat  of  it  ;  and  fuch  was  the  Truce  of  the  Hollanders  pro- 
Confederates  P^^^'''^^^'  ^^  ^^^^  Treaty  of  Mmiflcr^  who  refufed  abfolutely 

I H  AP.  IX.  ^(€xtatit§  of  Ctttce  anh  Btutvalitv*     1 43 

j  liften  to  any  more  than  a  Truce  5  and  the  Reafon  that  with  Fra»cg 
iey  then  gave  was,  that  their  Commonwealth  was  to  be  p^^cV^and 
'aintained  by  Arms,  and  that  by  admitting  a  Peace,  the  ^^^  Marquis 

I  me  might  be  ^  means  to  reduce  it  to  weaknefs,  which  Capl  RodHgo 
ould  in  the  end  tend  to  the  deflruction  of  that  State  ;  thenofFered  a 

ay,  they  offered  the  Truce  on  Terms,  that  if  *  France  fj^—l, 
•  ould  enter  thereinto,    ihe  fhould  oblige  herfelf  upon  ^hj^h  they 
jiy  Breach  to  reaflfume  War,  and  that  Treaty  of  Truce  might  treat  of 
as  continued,  which  not  long  after  was  converted  into  a  at  home. 

,  -r,  *  Monmouth'^ 

;  ^rpetual  Peace.  ^  j^.^^^^  ^^ 

il  Again,  'Truces  are  lometimes  promoted  lor  the  more  franQeJoUzZ^ 
\  meft  difcharge  of  a  League^  which  is  made  with  fome 
iher  Prince,  v/hom  they  have  accuftomed  to  compre- 
i:nd  therein:  fo  as  a  Peace  following  it,  or  a  Truce  not 
:ing  accepted  by  him,  they  take  occafion  to  leave  the 
sague,  it  being  not  his  fault  that  leaves  it,  that  the  War 
\  as  not  ended. 

VI.  And  although  it  feems  that  a  T!ruce  cannot  by  its 
indidon  prejudice  i]\q  pret en/ion  in  the  Principal  •,  yet  it 
moft  certain  that  if  he  which  is  chafed  out  of  a  conten- 
)us  State,  confents  that  during  the  T'ruce  the  Commerce 
all  be  forbidden  to  his  Subje^s^  he  doth  wholly  flop  the  gat  e^ 

*  Lewis  the  Twelfth  did  in  the  T'ruce  which  he  made  *  ^^^  ^^^ , 
ith  Gonfalve  after  the  Conquefl  of  the  Realm  of  Naples,    ^jfj,^  ^Tm  ^'"' 

VII.  In  England  by  the  Statute  of  2  H,  5.  cap,  6.  Rob-  however  he 
ry,  Spoiling,  breaking  of  'Truces  and  Safe-Condu£fs  by  hath  loft  the 

jiyof  the  King's  Liege  People  and  Subje^s  within  Eng-  poffcffion. 
nd^  Ireland^  and  Wales^  or  upon  the  main  Sea,  was  ad-  ^°^\ '  /  ^\ 
dged  and  determined  to   be  High-Treafon,    but  this 
•anch  concerning  High-Treafon  is  repeal'd  by  the  Statute 
20  H,  6.  cap,  II.  I  E.  6.  c.  12.  i  M,  Sejf.  i.  c.  t.  But  n  H.  4. 

h  the  faid  yl5i  of  2  H.  c.  for  the  better  obfervation  of 
races  and  Safe-Condu6ls,  Conferva  tor  Induciartan  i^  faU 

]Vrum  Regis  condu^uum,  v/as  raifed  and  appointed  in  every 
ortof  the  Sea  by  Letters  Patents:  His  Office  was  to  in- 
Jire  of  all  Offences  done  againft  the  King's  Truces  and 
ife-Condu6ls  upon  the  main  Sea  (out  of  the  Counties 

jl^doutof  the  Leagues  of  Cinque  Ports)  as  Admirals  of 
uftom  were  ufed  to  do.    Sir  John  Trebiel  was  committed 

^^  the  Tower  for  taking  a  French  Ship,  and  being  brought 

,,'to  Parliament^  did  there  juitify  the  f^ime  ;  but  at  fail 
ifcfs'd  his  fault,  and  begged  the  King's  Pardon.     And- 

II  at    ' 

144      MZnatits  of  €tmt  antj  j^eufraittt^  BookI. 

■\  AdParliam.  at  the  requeft  of  the  Lords  and  Commons  was  pardoned 
m)^fide"'  ^^  "taking  fatisfaaion  for  the  lofs  f.  Generally  all 
Cotton  Leagues  and  Safe-Condudls  are,  or  ought  to  be  of  Ruori, 

Abridgment,  that  is,  they  ought  to  be  Inrolled  in  the  Chancery^  to  the 
igE.4.6.B.  end  the  Subjedl  may  know  who  are  in  Amity  with  the 
^i^6  ^  8*  -^^"p'  and  w^o  not;  who  be  Enemies  and  can  have  no 
20  H.  6.  c.u  Adion  here,  and  who  in  League,  and  may  have  Adions 
14  J5. 4.  r.  4.  perfonal  here. 
i9i?.  4.  6.  B.      Sometimes  they  have  been  inrolled  In  the  JVardrohe^  as 

being  matters  of  State. 
J^axlm.  Note,  In  all  Treaties^  the  power  of  the  one  party ^  mi 

the  other y  ctight  to  be  equal ,  nor  are  they  to  be  held  firm  tiH 

Rott.Scot^^ede      Before  the  Statute,    when   any  breach  of  Truces  or 
jnm.  10 £.3.  Leagues  happened,  or  was  occafioned  by  the  mifdemea- 

^'^JS/'^^^^^^^^y  ^^  ^^^  'Kmgo^^  England's  Subjeds,  there  did 

qui  contra  for-  ufually  ifluc  fotth  Commiflions  under  the  Great  Seal  oi 

■mam  Treuga   England^  to  inquire  of  the  Infringers  of  the  fame,  and  to 

hominihus  de    punifh  and  award  Satisfaction  to  the  injured. 

^ddiquerlnu  ^I^I*  Frinces  who  neither  love  nor  hate  any  thing  ab- 

folutely,  feem  generally  inclined  to  Neutrality^  and  in  that 

govern  themfelves  in  their  Friendfhips  according  to  their 

Interefts  ;  and  Reofon  ofi  State^  in  efFed,  is  no  other  but 

Re af on  of  Inter  eft. 

Neutrality  may  be  of  two  forts  -,  the  one  with  Allimi 
with  either  <part^  the  other  without  Alliance,  or  fo  much  25 
the  leaft  Tye  to  the  one  or  other,  which  is  that  which 
properly  may  be  called  Neutrality. 

The  firft  is  governed  by  the  'Treaty  of  Neutrality\'tk 
latter  by  the  Difcretion  of  the  Neuter  Prince^  whofe  Car- 
riage ought  always  to  be  fuch,  as  that  he  may  not  give 
the  leaft  glimpfe  of  inclining  more  to  one  than  to  ano- 

IX.  The  Advantages  of  Neutrality  are,  that  the  Neu 
ter  Prince  or  Republick   is  honoured   and  refpefted  oil 
both  Parties,    and  by  the  fear  of  his  declaring  againft  oni 
Of  them,  he  remains  Arbitrator  of  others,  and  Mafterol 

And  as  a  Neuter  neither  purchafes  Friends,  nor/^'^' 
hhnf elf  from  Enemies  \  fo  commonly  he  proves  a  Prey^' 
the  Vi6lor  ;  hence  it  is  held  more  advantage  to  hazafd^' 

a  Congurft  ivlth  a  Companion^  than  to  remain  in  a  St^'^ 


:hap.  IX.  jfiDf  €  watte  j(  of  Zvmtanh0tutvautt,   hs 

)herein  he  is  in  all  probability  of  being  ruined  by  the  one  or 
he  other. 

But  Princes  that  are  pozverful^  have  ufed  generally  to 

•referve  a  Neutrality  ;  for  whilft  Petty  Princes  and  States 

juin  themfelves  by  War,  he  fortifies  himfelf  with  means^ 

nd,  in  the  end,  may  make  himfelf  Judge  of  their  Dif- 


On  the  other  hand  it  hadi  been  conceived  that  Repub- 
icks  that  are  weak,  what  part  foever  they  take,  it  will  be 
iangerous  to  them,  efpecially  if  they  are  in  the  midft  of 
wo  more  powerful  States  than  themfelves  ;    but  experi- 
nce  hath  made  it  appear  to  the  contrary,  that  Neutrality 
J  more  beneficial  to  a  weak  Prince  or  Republick^  fo  that  Much  praai- 
»'  hey  that  are  at  War  be  not  barbarous  or  inhuman.  For  al-  ^^d  by  the 
.  hough  a  Neutrality  does  not  pleafe  either  Party,    yet  in  ^""^5^  oi^Q 
ffed  it  wrongs  no  Man  ;  and  as  he  doth  not  ferve,  fo  he  peTify'states.  ] 
loes  not  hurt :  befides  his  Declaration  is  referved  till  the 
ifue  of  the  War,  by  which  means  he  is  not  obliged,  by 
iding  with  either  party,  to  gain  or  lofe  by  the  War. 
X.  But  if  the  Neuter  be  preft  by  NecefTity  to  declare 
1 1  limfelf,  he  muft  do  \tfor  the  moft  powerful  of  the  two  Par- 
I  ies,  following  th^it  Roman  Maxim,  That  either  they  muft 
,  nake  themfelves  theftrongeft^  or  be  a  Friend  to  theftrongefl  : 
So  they  of  Strasbourg  *  declared  for  the  Empire  againfl:  ^  .      ^    ^ 
,( ;he  French.     On  the  other  hand,  if  the  Neuter  fees,  that  Conful^ln' 
I  oining  to  the  weaker,  will  balance   the  Power  of  the  tus  ad  Achcsos^ 
(dronger,  and  by  this  Counterpoife  reduce  them  to  Rea-  q.^^^ optimum 
Ton;  the  fame  hath  been  generally  followed,  upon  the  #^'^^«^«''« 
Maxim,    That  the  fafety  of  States  confifvs  in  an  equal  conn-  hello:  imo nihil 
I  terpoife  of  the  one^  ajtd  the  other  %  for  as  the  greatnefs  and  tam  alienum 
I  opulency  of  a  Prince  draws  after  it  the  Ruin  of  their  Neigh-  ^^^^^  'veftris 
I  hursy  it  is  wifdom  to  prevent  it.  ^j  l^iavei 

dignitate  pnS' 
m'lum'iji^Qris  eriiii,     Lucius  lib.  35.     S<rJpta  Ammirat.  difc,  potit.  /.  18. 


[  H6] 

CHAP.     X. 

£>f  t\^t  gimmum'ttejs  anD  p^iUUQt^  of  ^m-- 
ijairat)o?0,  ana  otl^er  publics  ^iniUm  of 

I.  Cy  the  Fun^ion  of  Amhajfadors 
and  Agenti  generally  conjidered. 

II.  Of  the  Difference  betijoeen  Or- 
dinary and  Extraordinary. 

III.  Of  the  ^alif  cations  and  Mat- 
ters requifite  to  be  in  fuch. 

IV.  Whether  any  but  Sovereign 
Princes  and  States  may  qualify 
fuch,  and  njoho  may  not. 

y.  Of  the  Right  of  AmbaJJadorSy 
honx)  fecured  by  the  Lwws  Dinjine, 
and  of  Nations. 

"VI.  Of  Precautiotty  ^whether  the 
fame  may  he  ginjen  to  fueh  not  to 
come^  and  attempting  againf  fuch 
interd'i^ion,  honu  to  he  dealt  n.vith  ; 
and  of  the  punijhment  of  tbafe  that 
fhall  <violate  them ,  by  the  Lains  of 

VII.  Ho'iv  Princes  and  States  may 
goi'ern  jhemfel'ves  in  reference  to 
their  Reception  or  Refufal. 

VIII.  Whether  Ambaffadors  may  be 
fuhjeHed  to  Punifjment  nvhen  they 

offend  againjl  the  La<zvs  of  Na- 

IX.  Of  proceeding  againf  them  by 
Princes  and  Repuhlicks  at  this  day^ 
according  to  the  La^vs  of  Na- 

X.  Whether pri'vileged  in  that  State 
or  Country  thro'  <which  they  pafs 
'without  lawue  ;  andof  the<various 
Proceedings  agai?iji  them  by  fede- 

ral Princes  and  States  ^  illujlratii 
in  Precedents  and  Examples. 

XI.  Of  proceeding  againfi  then  aC' 
cording  to  the  Laws  o/'Englaij^,, 

XII.  Where  they  forfeit  their  Pru 
<vilegey  according  to  the  Laavstf 
England,  in  things  Capital.     ^' 

XIII.  Where  prefernjed  in  Matters 
ordinary  not  malum  in  fe. 

XIV.  The  Office  of  a  publick  Mini- 
fiery  'what  it  includes  in  Matters 
Cinjil  for  the  King  and  Natita 
wohom  they  reprefsnt. 

XV.  Whether  the  Hoi  fe  of  an  Am- 
baffador  can  he  a  SanSiuary  to  of- 
fendorsy  or  that  he  may  exercife 

Royal  furifdiSiion  o'ver  his  tron 
Domefiicks  and  Vaffals. 

XVI.  Whether  the  Goods  of  an 
Ambaffador  are  fubjeSi  tofeizurt 

for  Debts  contraBed  by  himfelf. 

XVII.  Outrages  cotnmitted  by  Am- 
baffadors y  niuhere  a  Forfeiture  of 
their  pri'vilege. 

XVIII.  Of  puniffment  on  thofe  that 
fpall  offer  Violence  to  their  fn- 

XIX.  Obfervations  touching  the  Im- 
munities and  Goi'ernments  of  tht 
publick  Minifiers  ofYcmzQ. 

XX.  Hoijo  introduced  by  the  Laws 
of  Nations. 

XXI.  Wars  ijohether jufi  for  Viola- 
tion done  to  publick  Minifiers, 


Coke A.lnfiit.  ^'    A  ^  Amhajfador  and  Agent  is  the  Tame  thing,  if 
fol.  153.  ZjL  ^^-  confidcr  only  the  Fundlion  of  their  Charges: 

Agents  are      only  in  this  they  differ  ^  an  Agent  hath  charge  to  repre- 


c  H  A  p.  X.     SDf  giml)affatio?3S.  147 

fent  the  Affairs  only  ;    but  an  Amhaffador  ought  to  repre-  generally  ufed 
fent  the  Greatnefs  of  his  Mafter^  and  his  Affairs.  ^^^J.^"  ^^'^re  ^ 

-  ,  cion  that  the 

Ambaflador  will  not  be  honoured  as  he  ihould  be  ;  therefore  the  french  Kings  of  late 
Years  have  no  Ambafiadors  in  the  Emperors,  Court,  bat  Agents,  becaufe  of  the  Com- 
'i  petition  for  Precedence  betwixt  him  and  Spain, 

\  '^n  . .      . 

II.  Ambafiadors  are  in  two  Capacities,  either  Ordi- 
nary or  Extraordinary  :  The  Ordinary  or  Lieger  Ambaf* 

li  fadors,  are  thofe  who  are  commanded  to  refide  in  the 
ii  Place  whither  fent,  unlefs  they  receive  Letters  of  Revo- 
cation *,  and  as  the  time  of  their  Return  is  indefinite,  ^o 
their  Bufmefs  is  uncertain,  arifing  out  of  emergent  Occa- 
I  fions,  and  commonly  the  Protediori  and  Afi^airs  of  the 
I  Merchants,  is  their  greatefl:  Care.     The  Extraordinary 
!  or  fro  tempore  are  thofe  that  are  employed  upon  fome  par- 
\  ticular  great  Affairs,  or  Condolements,  or  Congratula- 
tions, or  for  Overtures  of  Marriage,  ^c.  Their  Equi- 
page  is  generally  very   magnificent  and  illultrious,  and 
they  may  return  without  requefl:ingof  Leave,  unlefs  there 
be  a  reftraining  Claufe  in  their  Commiffion. 

III.  An  Ambafiador  or  Agent  ought  to  be  converfant 
in  all  forts  of  Hifi:ory,  reading  with  Judgment,  and 
weighing  all  the  Circumflances  of  Adlion  which  are  there 
reprefented,  by  which  he  will  be  qualified  to  know  (but 
efpecially  of  that  Country  whither  he  is  fent) 

-    1.  TheEflablillimentof  Eftates, 
^         2.  The  Rights  of  Limits.  - 

3.  The  Genealogies  of  Princes. 

4.  The  Pretenfions  of  Kings  upon  the  Eftates  of 

5.  Their  Forces,  Means,  Alliances,  and  manner  of 
living.     Perfonally  he  muft  be 

1.  Refolute  and   Couragious  in  that  which   he  hath 
wifely  deliberated. 

2.  Secret  in  Affairs  of  Importance. 

3.  Difcreet  in  his  Speech. 
4-  No  Detradlor  or  Evil  Speaker    of  any  King  or 

State,    but  more  efpecially  of   him  or  them^  with 
"whom  he  remains.  - 

K  2  5.  ^^^ 

148  ®f  gittlMlfatlO;^*  Book  I. 

5.  One  that  will  fpeak  freely  of  his  Matter's  Pretenfi- 
ons,  if  there  be  a  Queftion  to  maintain  them. 
The  Trum-  IV.  By  the  Laws  of  Nations,  none  under  the  Degree 
peter  that  ^f  ^  Sovereign  Prince  can  nominate  or  fend  any  in  that 
Letters Vrom  Qi'^^^^Y  >  ^^^r  Can  any  Subjedt  fend  or  receive  any  Ambaf- 
the  Maid  of  f^dor,  be  he  never  fo  Great  5  if  a  Viceroy  doth  it,  it  is 
Orleans  to  the  no  Icfs  than  High  Treafon  ;  and  fo  it  was  declared  when 
Earl  of  Sujolk  jj^^  Scots^  inconfulto  Principe^  fent  Lowden  and  others  in 
arfd  the  Rea-  Q^^^'ty  of  private  clancular  CommifTioners,  to  treat  with 
fon  of  that  the  French  King  Lewis  the  Thirteenth,  in  the  Name  of 
was,  becaufe  the  whole  Nation  for  Afliflance,  the  King  would  not  ad- 
he  came  from  ^^a^  qj.  |^g^j.  them.  So  did  Queen  Elizabeth  v/hen  CM}?^ 
Prince  nor  f^^^  AJfonvilk  Came  into  England  in  Quality  of  a  Minifter 
one  commifTi-  of  State,  fent  from  the  Duke  of  Alva  then  Governor 
onated,  or  ca-  of  Flanders^  fhe  refufed  to  admit  him,  he  not  having 
pableof  fend-  ^^y  Commiflion  or  Credentials  from  the  King  of  Spain, 
pe?er.  GrTw-  '^^^  ^^^^^5  ^^^  Eledlors  and  Princes  of  Germany  have  ob- 
/o«'sHiftory  tained  the  Privilege  of  fending,  and  the  Reception  of 
of  France,  AmbafTadors,  *  but  that  is  limited  only  to  Matters 
/e/- 326.  touching  their  own  Territories,  and  not  the  State  of  the 
^  Empire.     And  fo  likewife  the  Hans  Towns  may  do  the 

GermaV?i[ti-  ^^^^  '  ^^^  ^^^Y  ^laim  the  like  Privilege,  they  being  free 
ces  may  have  Imperial  Cities,  and  partake  of  the  fame  Regalia's,  either 
fuch  a  Prero-  by  Prefcription  or  by  Grants  from  former  Emperors, 
gative,  but  It  vvhofe  Neceflities  enforced  them  to  part  with  fuch  Royal 
IS  jecunano    pIq^^j-s  of  the  Empire;  and  generally  they  +  fend  for 

tantumfure.  Airr^i  i  t-»/-  r 

Et  qui  jus  mit-  their  Ambafiadors  always  two  Perfons,  one  or  great 
tendorum  he-  Birth,  and  that  hath  been  a  Soldier,  to  maintain  Decency; 
gatorum  fecun-  ^^^  ^^  ^^^^  ^  Do6lor  or  Lawyer,    to  regulate  Affairs 

inhlCnu     ^^^^^  Learning,  and  by  the  Pen. 

mlttantur  Le- 

gatinon  de  Rehus  uni-verfum  ccncernentihus  hnperiufiy  fed  tantum  fui  Territorii  rationt  ]  w 
£m7n  ipjis  intuitu  tctntum  datum,  ultra  igitur  tertriinos  non  eji  procedendum,  Jieret  enimam 
fr^judicium  Impfratorl,  iSc.  Kirknerus  §.25.  Memorable  was  that  of  the  Siviizfi) 
v/ho  fent  a  Meflage  to  the  French  King,  that  he  ihould  not  fend  them  an  Ambaffador 
with  ftore  of  Words,  but  a  Treafurer  with  Plenty  of  Money. 
■J  Monmouth'' s  Hi  (lory  oi  France  ^  fol.  27,   28. 

V.  The  Right  of  Ambafiadors  is  fecured  both  by  the 

Safeguard  of  Men,  and  alfo  by  the  Protection  of  theZ^o' 

Divine  ;    therefore  to  violate  this,  is  not  only  unjuft^  but 

Pompon.  Leg.    impious  too  :  And  as  Prote5fion  is  given  to  the  Legates  o\ 

jiquisD.  de     Supreme  Rulers  by  the  Laws  cf  Nations  \  fo  by  the  Cm 

l^gationihus.    ^^^  .j^^j.^   -^  ^  Proteftion  likewife  for  Provincial  U- 

Chap.  X.      €>f  atttbaflabO^g^*  149 

vrateSy    Heralds^   and  Confuh,      This  Right  of  Legation 
was  originally    provided,    faith   Livy^    for   a    Foreigner^  Liv.  Uh,  16. 
not  a  Citizen  ;  yet  in  Civil  Wars,  NecefTity  fometimes 
makes  Place  for  this  Right  befides  the  Rule,  as  when  the 
People  are  fo  divided  into  equal  Parts,  that  it  is  doubt- 
ful on  which   Side  the  Right  of  Empire  lieth,  as  that 
unhappy  Spot  of  Flanders  \    or   when   the  Right  being 
much  controverted,     two    contend    for    the   Succeflion 
X.'Q\kitT^hrone  \  for  in  this  Cafe  one  Nation  is  reckoned 
as  two  ;  and  fo  was  the  State  of  England^  when  the  Houfes  qjered^in^a 
of  Tork  2ind  Lancqfier  contended  for  the  Crown ^   properly  folemn  War, 
then  called  Commiffioners  :  Nay,  this  Right  of  Z^^^//^;?  and  deprived 
hath  been   fo  preferved,    that  the   very  Meflengers  of^^.^^^^^^ 
Rebels  have  been  protected,    as  were   thofe   of  ^^^/^^-^  ^vi'tlf oth^r 
by  Philip  of  Spain,     So  great  a  Refpe6t  have  Nations  Royalties, 
had  in  all  times   to  fuch  Men,    that  even   *   Traitors,,  lofe  the 
nay   Pirates   and   Robbers^    who   make   not   a   Society,  ^'S^^  ^^ p^' 
nor  have  any  Prote6lion  by  the  Law  of  Nations^  and  ^^^i]iis  de- 
with  whom  neither  Faith  nor  Oath  (as  fome  conceive)  tained  the 
may  be  kept.  Faith  being  given  them,   obtain  the  Right  Heralds  of 
of  Legation,  as  once  the  Fugitives  in  the  Pyrenean  For  eft  ^^'/^«^.whom 

XA  heconquer'd. 

^^^-  *  C.  Pooh  a 

Traitor  fled 
to  'Rome't  the  Vofe  fent  him  AmbafTador  to   the  Trench  King,  of  whom  the  King  of 
£»^/flW  demands  his  Subje'51,  fed  non  pra'valuit.      Coke  Injiit.  4.  fol.  153. 

VI.  Ambajjadors  may  by  a  Precaution  be  warned  not  come  j   if  they  dare,  they  fhall  be  taken  for  Enemies  ;  Lucas'^  Rep. 
but  once  admitted  even  with  Enemies  in  Arms,  much  4-  5- 
more  with   Enemies  not  in   adlual  Hoflility,    have  the 
Proteflion  and  Safe-guard  of  the  Laws  of  Nations  ;  and 
therefore  their  Quality  being  admitted  by  Safe-condud, 
they  are  to  be  preferved  as  Princes  ;  and  fo  it  was  declared  Rot.  Pat.  5. 
in  Parliament^     where-  the    killing  of    John    Imperial^  i^.3,«»».i8, 
AmbafTador  from  the  States  of  Genoa^  was  High-Treafon, 
Crimen  Ufa  Majeftatis, 

t  So  likewifeof  ^.  de  Walton^  the  King's  AmbafTador, 
Nuttcium  Domini  Regis  miffum  ad  mandatum  Regis  exequen^  t  Legatus  ejus 
dum^  who  was  murdered  by  one  John  Hill,  which  Qf-  '^'^^^J'^^f^^ 
fence  was  adjudged  High-Treafon,    and   accordingly  he  "^^ hlmranJul 
was  drawn,  hang'd,  and  beheaded.  epfuutillecu- 

jus  njicem  ge- 
^^.h  ^  LegaiQs  'violar^ontrajus  Gentium  ej},  22.  v^s;^//.  49.     Note,  This  was  three 
^  K  3  Years 

1 50  ©e  ambalTaDO?  3'.  Book  i; 

Years  before  the  making  of  the  Statute  of  25.  £.  3.  ^«<y/-^  if  fuch  a  Prorfjc-  is  within 
the  Statute  at  this  Day. 

^i  violarit  And  by  the  Julian  Law,  he  that  violates  AmbafTadors 
JuUade^r  ^^  S^^^^y.  ofp^t)lick  Violence-,  that  is  of  prollituted  Faith 
iublica  tens-  ^^  publick  Authority,  and  of  a  Breach  of  the  Laws  of 
iur.  Nations  :  And  by  the  Pontifical  Law,  it  is  no  lefs  than  a 

Piacle,  and  to  be  interdided  from  the  Benefit  of  holy 
things.  Philomela  fung  a  fatal  Requiem  for  the  bloody  En- 
tertainment which  fhe  gave  the  Ambafladors  of  Frederick, 
Barharojja^  the  Empe'ror  having  fent  them  to  treat  in  or^ , 
der  to  Peace  -,  but  they  inftead  of  that  avowed  the  Adion' 
Tulhrh  Holy  of  thcfe  that  murdered  his  Ambalfadors :  The  offended 
War,/.  3.  C.4.  Emperor  having  taken  the  City,  razed  it  to  the 
Ground,  and  executed  all  the  People  therein  as  Rebels 
and  Traitors  againft  the  Laws  of  Nations. 

Vn.  On  the  other  Hand,  AmbafTadors  may  not  al- 
'^ays  be  received,  though  they  ought  never  to  be  rejeded 
without  Caufe  \  for  there  mayl^e  Caufe  from  him  from 
"whom  they  come,  as  the  Roman  Senate  would  not  admit 
of  the  EmbafTage  of  the  Carthaginian^  whofe  Army  was 

Camcl£n\^n\.  ^^^^  ^"  ■^^^6'  >  ^^^  ^j^ig  oi  Spain ^  thofe  o^  Plolland -,  and 
Daniel's  Hi-  the  then  Pope^  the  AmbafTador  of  Henry  the  Second  after 
ilory  of  Henry  the  Murder  of  Becket  Archbifhop  of  Canterbury  :  So  like- 
2.  Caro/us      ^,jrg  f^Q^^  j-j^^  y^j-y  Perfons  that  are  fent,  as  Tbeodorus  ih 

Gall^^,  Veni  ^^h^ifit  whom  hyfwiachus  would  not  give  Audience  to ; 

ioru7n,  &  Flo-  and  Mr  OJii-er^  Lewis  the  Eleventh's  Barber,  whom  they 

rentinorumad  of  Gaunt  refufed  :     Yet  Matthceus  Palmer  ins  ^  an  Apothe- 

^dkZ^uml'if-  ^^^y  ^^  Florence,  had  better  Fortune  than  the  French  Bar- 

Joi  dedudjuf-  b^^  '  f"^^  he  being  fent  in  Quality  of  AmbafTador  to  Alphon[(i^^ 

Jit  in  locum      Khg  of  Napks^  and  having  acquitted  himfelf  elegantly^'. 

^uiacomitatu^  and  wlth  much  Generofity  at  his  firfl  Audience,  the  King^i 

fuoaoeffeutri'  {.^vi^g  Information  that  he  was  an  Apothecary,  faid,  ^f^ 

ria.  Guic.  I.    ^^^^  /^'^'^  Z"^  fpeciak  dt  FiCTcnze^  qtialt  debhono  ejjere  gh  Medh 

iS.Be//aius    ci  ?  If  the  Apothecaries  of  ^lox^nct  are  fuch^  what Jhall list 

^•3'  think  of  their  Phyficians  P 

So  likewife  where  the  Caufe  of  fending  is  fufpedled,  in 
reference  to  diflurb  the  People,  or  with  Intentions  rather- 
to  fow  Sedition,  than  to  conclude  a  Peace  (if  fuch  be  theii* 
Errand)  or  not  honourable,  or  unfeafonable.  As  for  thofe 
afTiduous  Legations  which  are  now  in  ufe,  they  may  with 
very  good  Right  be  rejeded  ,  for  the  no  NecefTity  of  them 


:  H  A  p.  X.     M  awftafifafio^g*  151 

ppears   by  the   antient  Cuftom   whereto  they  are   un-  Bacon'sH. 
,nown,   which  made  Henry  the  Seventh  admit  of  none.     ^^^* 

The  Venetian  having  admitted  Henry  the  Fourth  of  *  ^^^^ 

'France  his  AmbaHador,    yet  thay   interdided  him  *  to  mld^'o'ipatin 

ome  with  the  other  Ambafifador  to  the  Chapely    till  the  i^is  353  Epi- 

uno- was  reconciled  to  the  C^z/r^i?  ^/ Rome.  ftle.Co/f^^. 

vlll.  By  the  Laws  of  Nations,  only  unjuft  Force  is  kept  ^-^^l^'  ^°^*^ 

^  11  rom  the  Bodies  of  Ambafladors  ;   for  if  the  Laws  of  Na- 
'ons  be  broken  by  him,  he  is  fubjed  toPunifhment :  Yet  ^^^Tju^^^^^^ 

;,  he  Opinions  of  Nations,  and  Men  eminent  for  Wildom,.X,^X.'^flX- 

ive  been  doubtful  in  this  Point,  and  Precedents  on  both  rum  Legates 

iides  have  been  avouched :   One  which  feems  to  refute  <^ontrajus  Le. 

J  hat  Pofition  of  punching  fuch  Minifters  of  State  :  The  ^^^fX/.l'' 

p|  Vmbaffadors  of  Tarqiiin^  who  had  committed  Treafon  at  huityCotV. 
lome^  and  as  *  Livy  obferves,  were  in  the  State  of  Ene-  »i^»«.  Re/p, 
nies;  yet  the  Right  of  Naiions  (as  he  calls  it)  prevailed  fo  32.  «.  29. 
ar  as  to  preferve  them^  though  in  a  Cafe  of  lioftility.     On  ^^^^^''f^^A* 
he  other  Hand,,  f  Saluft  obferves,  that  Bomilcar^  one  of  <:^,^/6.  i  m\ 
he  Carthaginian  Ambafladors,  who  cam.e  to  Rome  on  the  Scf.  i.  c.  i. 
)ublick  Faith,  was  adjudged  Guilty^  rather  (faith  he)  hy  the  *  ^^n^am' 
Rules  of  Equity,  than  by  the  Laws  of  Nations  :  Equity,  that  '"S/fr^lt'h^ 
s  the  mere  Law  of  Nature^  fuffers  Punifhment  to  be  exadl-  pumhcQef- 
:d  where  there  is  found  a  Delinquent,  but  the  Laws  of  fent,justam£77\ 
Nations  except  the  Perfons  of  Ambafjadors  :  for  certainly  ^';^^*'«^^  ''^^' 
;heir  Security  out- weighs  the  Profit  arifmgfrom  Punifhment^  1^^-^ 
»vhich  may  be  inflided  by  him  that  hath  fent  him  fif  he  gis  ex  equo 
3e  willing)  if  unwilling,  it  may  be  exadted  of  him  as  an  bonoqueqnam 
Approver  of  the  Crime.  ex  jure  Gent, 

^  Bomitcar  co- 

mes ei  qui  Ro. 
mam  fide  puhlica  venerat.  An  Enemy  Is  board  to  whom  they  are  fent  ;  but  their 
Privilege  obliges  not  thofe  through  vvhofe  Bounds  they  pafs  without  Leave  ,•  for  if 
they  go  to,  or  come  from  their  Enemies,  or  make  any  holliie  Attempt,  they  may 
be  flain.     Lin),  lib.  26.  "* 

IX.  Again,  as  Ambaffadors  are  not  to  render  a  Reafon 
of  their  Anions  to  any  other ^  but  to  hir4  by  whom  they  are  r  .-      > 
II lent  j  10 'It  IS  impoiiibie,  by  reaion  or  various  Interefis  c  ig.  §.4, 
(an4  other   Secrets  of   State,    which   pafs  through    their  4»  ^  5.  * 
jj  Hands,  but  fomewhat  may  be  faid,  which  bears  a  Show '^^^'''^^>^^'*- 
|or  Face  of  Crime  j  (which  perhaps  may  prove  orherwife)  'h/at'Zaor^ 
\  yet  the  examining  and  tracing  of  the  Truth,  may  be  of  a  taiefn\e°S^ ' ' 
4ngerous  Confequence  -,  and  therefore  if  th,e  Offence  be  -^^.  ^«//.  C 

^  ''  K  4  fuch 

152  iSDf  amfcaffaijo?0*  Booki;^ 

fuch  as  may  be  contemned,  it  is  ufually  to  be  diffembled 
or  connived  at,  or  elfe  the  AmbaiTador  be  commanded  to 
depart  the  Realm  ;  and  if  the  Crime  be  cruel,  and  pub- 

Coke  Injlit  4.  lickly   mifchievous,    the  Ambafiador  may  be  fent  home 

foL  152.  i^jth  Letters  of  Requeft  to  his  Mafter,  to  inflid  Punifh. 
ment  according  to  the  Offence  :  So  hkewife  in  the  Precau- 
tion of  a  great  Mifchief,  efpecially  publick,  (if  there  be 
no  other  Remedy)  AmbafiTadors  may  be  apprehended  and 

Sic  Carolus     exccutcd  ;  and  if  they  oppofe  by  Force  of  Arms,  thev 

DucisMedlh.  may  be  (lain. 

nenjts  ut  juhdi- 

ti  fiii  impera^vitf  ne  a  Comitafufuo  ahederet,  Guicciard,    in  did.  jam  loc.  Vide  Camb- 

den'j  Eliz,  Anno  1571.   15S4. 

Co.  \Infi.fQl.      In  the  Bifhop  of  Rofsh  Cafe,   An,  13  Elix.  the  Que- 
^52*  flion  was.  An  Legatus  qui  rebellionem  contra  Principemd 

quern  legatus  concitat^    Legati  privilegiis  gaudeat^  i^  non  ut 
hcftis  pcsnis  fubjaceat  ;  and  it  was  refolved.  That  he  had 
loft  the  Privilege  of  an  Ambafiador,  and  was  fubje6l  to 
Punifhment  ;  nor  can  Ambafladors  be  defended  by  the 
Law  of  Nations,  when  they  commit  any  thing  againft 
the   State  or   Perfon  of  the   Prince   with   whom  they 
c  (     f  the        ■^'  "^^^  ^^^y  Ambafiadors  are  in  Safety  in  their  Enc- 
Ambaffador    ^ly's  Countries,  and  are  to  be  fpared  when  they  commit 
of  Mufccvy.     Offences,  is  not  fo  much  for  their  own  or  Mafterh  fake, 
Lucas  s  Re-    i^i  hecaufe  without  them  there  will  never  be  an  End,  of  Ho- 
ports,  4.  5.    j}iiiiy^  f2or  Peace  after  War  :  Neither  is  the  Name  or  Par- 
fon  of  an  Ambaffador  fo  inviolable,  either  in  Peace  or  in 
time  of  War,  but  there  may  be  both  a  convenient  time 
and  a  good  Occafion  to  punifh  them,  and  this  ftanding 
with  the  Laws  of  Nations,  as  may  appear  by  thefe  fol- 
lowing Examples. 
Thucyd.  lih.  2.       I.  The  Law  does  not  pertain  to  them  through  whofe 
Jppiande  Bel-  Bounds  Ambaffadors  pafs  without  Leave  -,   for  if  they  go 
li  AthlnienPMm  ^^  ^^^"^  Enemies,  or  come  from  their  Enemies,  or  make 
Socit  legatoi    ^"y  hoftile  Attempt,  they   may  be  flain  :    So  the  Alht- 
Syracufanorum  nians  did  to  the  Ambafladors  between  the  Per/tans  z"^^ 
mijfosadCi'vi-  Spartans ',    the  Illyrians  to  the  Ambaffadors  between  the 
';;;;  «//^  ce-    -^p^^^  ^^^  Romans, 

2.  The  Emperor  Charles  the  Fifth,  advertifed  of  the 

League,made  ag^^inft  him,  would. not  difmifs  the  -Ain- 

^.,,        "  '  balladors 

inaflkdors  of  France^    England^  and  Venice,  till   his  own  ^^  Gallorum 

Ze  in  Safety,  but  he  fets  Guards  upon  thofe  of  France,  ^f  J"^^^'"  ^': 
were  in  >:3dici^,  r  j    o  j  ^i  •  ^,i^^^^*  q^o^  «« 

r^/(^,  and  Florence,  caufing  them  to  be  condueted  thirty  p^j^  ^^^„. 
Miles  from  his  Court,  with  a  Prohibition  not  to  fpeak  to  cepere  occide- 
them,  nor  for  them  to  write.     As  to  him  of  Milan,  as  runty  ^mdejw 
his  Subje^l,  he  was  enjoined  not  to  part  from  Court  \  but  /^''',  f ''""''^' 
as  for  him  of  England,  there  was  no  Alteration.  Camden  Eliz. 

■^  0.  The  Venetians  havings  deftroyed  fome  of  the  Cor-  Anno  1571. 
rm>j  Amurath  commanded  Luigi  Contarini,  then  Bailio  Hiftory  of 

Jr     "*    .  1      •         -r       J  the Republictc 

of  F^«/rMo  be  impnfoned.  ,  ,.       ,  .    of  FenL.  foL 

A.  The  Seigniory  of  Venice  underftandrng  that  certam  450,451, 
Traitors,  who  had  revealed  their  Secrets  to  the  Turk,  were 
fled  for  Protedlion  into  the  Ploufe  of  the  French  Ambaf- 
fador  at  Venice,  fent  Officers  to  fearch  the  Ambaflador*s 
Houfe;  but  the  Ambaffador's  refufing  them  Entrance, 
the  Senate  commanded  certain  Cannon  to  be  brought  out 
of  the  Arfenal  to  beat  down  his  Houfe,  which  when  he 
faw  planted,  he  furrendred  up  the  Traitors. 
J*""  ^5.  The  Ambafladors  of  Tarquin,  Morte  affigendos  Ro-  ' 

mani  non  judicarunt,    {3  quanqiiam  viji  funi  ut  hojlium  loco 
ejjmt,  jus  Gentium  tamen  valuit. 

6.  The  State  of  Rome,  though  in  Cafe  of  mod  Capital  Good^h  de 
Crimes,  exempted  the  Tribunes  of  the  People  from  Que-  ^^i-  ^"^^i- 
(lion  during  the  Year  of  Office.  ^''"' 

7.  The  AmbalTadors  of  the  Protefianis  at  the  Council  Aaa  trident, 
of  'Trent,   divulging  there  the  Bo5irine   of  the  Church,  Gonalu. 
contrary  to  a  Decree  there,  whereby  it  was  enadled  a  Crime 
equivalent  to  Treafon,  yet  flood  they  protected  from  any 

It  is  generally  confented  by  all  the  Civilians,  That  Le-  Pompon.  Leg. 
.gatis  de  jure  Gentium  indicium  eft,   ^  eorum  corpora  falva  ^^^'\  ^'  ***  ^^ 
fmty  propter  necejjitatem  Legationis,  ac  ne  confundantur  Jura  ^^ 
commercii  inter  Principes, 

8.  Viva,  the  Pope's  Legate,  was  retrained  by  Henry  Benedi^.  /« 
the  Second  for  exercifing  a  Power  within  his  Realm,  not  ^i^^  V.en.  2. 
allowe^i  or  admitted  of  by  the  King,    in  difquiet  of  the 

State,  and  forced  to  fwear  not  to  a6t  any  thing  in  praju- 
dictum  Regis  vel  Regni. 

On  the  other  hand,  it  hath  been  anfwered,  That  they 
are  by  the  Laws  of  Nations  exempted  from  Regal  Trial ; 
all  A6lions  of  one  fo  qualified,  being  made  the  Adls  of 
'  his  Mailer,  or  of  thofe  whom  he  reprefents,  until  he  or 


154  flPf  Slmbaffatio?st.         b  o  o  k  i. 

they  difavow  ;  and  Injuries  of  one  Abfolute  Trince  or  ^tait 
to  another,  \%  fa5lumhoftilitatis^  and  not  Treafon  3  the  Inv 
munity  of  whom  Civilians  colle6t,  as  they  do  the  reft  of 
their  Grounds  from  the  Pra6lice  of  the  Roman  State^  dc* 
ducing  their  Arguments  from  thefe  Examples. 
Colloquium  9.  The  FabU  Ambafladors  from  Rome^  were  returned 

Machiav,  1,2.  fafe  from  the  Chades^  with  demand  of  Juftice  againft  them 

^Liv,  2  Doc,  ^^^y'  ^^^^^°^g^  ^h^y  ^^^  ^^^"  taken  bearing  Arms  with  the 

EtrurianSy  their  Enemies. 
Sir  Robert  10.  King  Edward  xht  Second  of  England^  fent  amongft 

Cotton's  Poji-  others  a  French  Gentleman  Ambaflador  into  France  \  the 
fsume.  King  upon  this  arraigned  him  as  a  Traitor,  for  ferving 

the  King  of  England  as  Ambaflador,  who  was  his  Enemy 
(but  the  Queen  procured  his  Pardonj. 
Hott.  Scaccar.       i  j.  Henry  the  Third  did  the  like  to  one  of  the  Pope'% 
Tfw'^im'^'  Ambafladors,  his  Collegue  flying  the  Realm  fecredy,  fear- 
vj.frmi.    -^g^  timens  felli  fui^  as  the  Records  have  it.     Edward  thi 
Firft  refl:rained  another  of  the  Pope's  turbulent  AmbalTa* 
dors,  till  he  had  (as  his  Progenitors  had)  informed  the 
Pope  of  the  Fault  of  his  Minijier^  and  received  Satisfac- 
tion for  the  Wrongs. 

12.- Henry  the  Eighth  commanded  a  Fr^;?^i>  Ambafla- 
dor to  depart  prefently  out  of  the  Realm,  becaufe  he  was 
the  profefled  Enemy  of  the  See  of  Rome. 
Berhert^  13'  Lcwis  de  Prat.,  Ambafl'ador  for  Charles  the  Fifth, 

Hift.  H.  8.   was  commanded  to  his  Houfe,  foraccufing  falfly  Cardinal 
Mko  1523.     Tl^oolfey  to  have  pracbifed  a  Breach  between  Henry  the 
Eighth  and  his  Mafler,  to  make  up  the  Amity  with  the 
French  King. 

14.  Sir  Michael  Throgmorlon^  by  Charles  the  Ninth  of 
France.,  was  fo  ferved,  for  being  too  bufy  with  the  Prince 
of  Conde's  Fad  ion. 

15,  The  Pope's  Ambaflador  at  Paris  was  arraigned, 
for  prafliflng  certain  Treafons  in  France  againfl:  the  King, 
in  the  Parliament  of  Paris,  and  was  found  there  guilty  and 
committed  to  Prifon. 

Cafnhdefis  i^*  Doclor  Man  then  Ambaflador  was  taken  from  his 

Hift.Q^ £/;"«.  Houfe  at  Madrid  in  Spain.,  and  put  under  a  Guard  iot 

J.  1567.        fliraiter  Lodging  for  breeding  a  Scandal  (as  the  Conde^cn 

faid)  in  ufing  by  Warrant  of  his  Place,  the  Religion  of 

his  Country,  although  he  alledged  the  like  permitted  to 


Guzm^-n  de  Silva^  their  Ambailador  in  England^  ds\d  to  the 
^urk  no  lefs  than  in  Spain, 
ij,  Francis  the  Firll,  Kmg  of  France,  fent  C^far  Pre-  Gukdm-d, 

1  r^/i/J  and  Anthony  Rincome,  Ambafiadors   to  the   Turk ;  //^.  18. 

'  they  were  furprized  by  the  Armies  of  Charles  the  Fifth 
on  the  River  Po  in  //^/y,  and  were  put  to  Death  •,  the 
frcnch  King  complained  that  they  were  wrongfully  mur- 
dered; but  the  Emperor  juftified  their  Death;  for  thac 
the  one  was  a  Genois,  and  the  other  a  MilanoiSy  and  his 
Subjects  feared  not  to  ferve  the  King  his  Enemy. 

18.  Henry  the  Eighth  being  in  a  League  with  the  French,  Herherrs 
and  at  Enmity  with  the  Pope,  who  v/as  in  League  with  ^^^*  -"•  ^^ 
i:\^  French  King,  and  who  had  fent  Cardinal  Pool  to  the 
Ymch  King,  oF  whom  King  Henry  demanded   the  Car- 
nal, being  his  Subjed,  and  attainted  of  Treafon,   fed 
non  pTievaiuit. 

19.  Samuel  Pelagii,  a  Subjed  to  the  King  of  Morocco^ 
pretended  that  he  v/as  an  AmbafTador  fent  unto  the  States 
General  of  the  United  Provinces  ;  he  came  to  them,  and 
accordingly  they  treated  with  him,  afterwards  he  de- 
parted ',  and  being  upon  the  Sea,  he  there  took  and  fpoil- 
ed  a  Spamfo  Ship  *,  and  then  came  into  England  \  the  Spa- 
nijh  AmbafTador  here  having  received  Intelligence  of  the 
fpoliation,  caufed  his  Pcrfon  to  be  feized  upon,  intend- 
ing to  proceed  againil  him  as  a  Pirate,  and  imprifoned 
him  •,  and  upon  Conference  with  the  Lord  Coke,  Baderidge,, 
and  other  Judges  and  Civilians  ;  they  declared  their  Opi- 
nions, That  the  Caption  of  the  Spaniard'^  Goods  by  the  . 
Morocco  AmbafTador,  is  not  in  Judgment  of  Law  a  Pira- 
OS  in  regard  it  was  apparent  that  the  King  of  Spain  and 
the  King  of  Morocco  are  Enemies,  and  the  fame  was  done 
in  open  Hojlility  ;  and  therefore  in  Judgment  of  Law 
could  not  be  called  Spoliatio,  fed  legalis  Captio ;  and  a 
Cafe  out  of  2  i^.  3./?/.  2.  was  vouched,  v/here  a  Spanijh 
Merchant  before  the  King  and  his  Council,  hi  Camera  Scac- 
f«nV, brought  a  Bill  againft  divers  Englifhmen,  therein  fetting 
forth  quod  depradatus  ^  fpoUatus  fuit  upon  the  Sea,  juxta 
partes  Brittani^e,  per  quendam  Virum  helliccfam  de  Britan- 
^^(^dttiuadam  Navi,  and  fo  of  divers  Merchandizes  there- 
"!»  which  were  brought  into  England,  and  came  into  the 
Hands  ot  divers  Engliflimen,  naming  them,  and  fo  had 


156  fiDf  ambaffaBo^iS.         Booki 

Pioccfs  agalnfl  them,  who  came  in,  and  pleaded,  That 
in  regard  this  Depredation  was  done  by  a  Stranger,  and 
not  by  the  Subjedls  of  the   King,  therefore  they  ought 
not  to  be  punifhed  ;  in  regard  that  the  Statute  of  3 1  /^,  5 
Cap.  4.  gives  Reftitution  by  the  Chancellor^  in  Cancelkrk 
fihi  vocato  uno  Judice^  de  uno  Banco  vel  altero  \  and  by  the 
Statute  o^  2y  Ed.  3.  cap,  13.  that  the  Reftitution  maybe 
made  in  fuch  a  Cafe  upon  Proof  made,  by  the  Chancellor 
himfelf  without  any  Judge  ;  and  upon  that  Cafe  itwasre- 
'iBulflrodez^,  folved,  ^od  quifquis  extrancus,  ^c.  who  brings  his  Bill 
iRo.RepAj^.  Upon  this  Statute  to  have  Reftitution,  debet  probare fjjM 
tempore  captionis  fuit  de  amhitia  Domini  Regis  \  and  aifo, 
'quod  ipfg  qui  eum  ceperit  ^  fpoliavit^  fuit  etiam  fuh  obei- 
entia  Regis,  vel  de  amicitia  Domini  Regis,  five  Principii  jw- 
rentis  tempore  fpoliationis,  £5?  non  inimicus  Domini  Regis  fivt 
.    Principis  querentis,  qui  fi  fuerit  inimicus .^  i^  fie  ceperit  k- 
na,  tunc  non  fuit  fpoliatio,  nee  deprcsdatio,  fed  legalis  captb^ 
prout  quilihet  inimicus  capit  fuper  unum  £5?  alterum  :  the 
Judgment  of  which  Cafe  was  held  to  be  Law,  and  there- 
upon the  Judges  delivered  their  Opinions,  that  the  Morom 
AmbafTador  could  not  be  proceeded  againft  as  a  Pirate. 

20.  In"  the  time  of  Philip  the  Second  o^  Spain,  the^^ 
netian  Ambaflador  in  Madrid  protecting  one  Bodovario^i 
Venetian,  an  offender,  that  fled  into  his  Houfe,  andde- 
nying  the  Corrigidor  or  Jufiice,  to  enter  his  Houfe,  where 
the  Ambaflador  ftood  arm'd  to  withftand  them  ;  upon 
Complaint  made,  the  Ambaflador  was  removed  unto  ano- 
ther Houfe,  till  they  had  fcarched,  and  found  the  Offen- 
der; then  conducing  back  the  Ambalfador  with  all  due 
refpecl,  a  Guard  was  fet  upon  his  Houfe  to  ftay  the  fur}' 
of  the  enraged  People  ;  the  AmbafTador  complaining  to 
the  King,  he  remitted  it  to  the  Supreme  Council:  theyju- 
llified  the  Proceedings,  condemning  5^^<9i;^m  to  lofe  his 
Head,  and  other  the  Ambaflfador's  Servants  totheG/zfc 
all  which  the  King  turned  to  Banifhment ;  and  to  fatisiy 
the  xviO^Serene  Republick,  fent  the  whole  Procefs  to  hip 
de  Mendoza,  his  AmbafTador  at  Venice,  declaring  by  a  pub- 
lick  Ordinance  unto  that  State,  and  all  other  Princes,  'ih(^^ 
in  cafe  his  AmbafTador s  fioould  commit  any  Offence  unworlhil)\ 
and  difagreeing  to  their  ^alities  and  Profeffwns  of  Amhdjl^' 
dors,  they  fhould  not  enjoy  the  Privilege  of  thofe  Officers,  U 
be  wmld  refer  them  to  be  judged  by  the  Laws  of  that  Princt 

c  H  A  p.  X.      Of  SimJiatolio^jS*  j^y 

or  State  where  they  then  reftded^  and  where  they  had  injured.  Sir  Hen.  Woot- 
It  was  a  great  and  noble  Saying.  '  T\!'^^^T  ^^ 

21.  In  the  Year  1568,  Don  Guhernon  d*Efpes  was  or-^^^^Ti 
der*d  to  keep  his  Houfe  in  London^  for  fending  fcanda-  r^. .  g-  d  / 
lous  Letters  to  the  Duke  d'Aha  unfeal'd  ;  and  in  1586,  c,'//5«»s  /^/ 
J)on  Bernardino  de  Mendoza,  was  reftrained  firft,  and  af-  hum.  and  the 
ter  commanded  away.  Propofition  to 

XL  The  manner  of  proceeding  againft  them,  accord-  ^^^ZJ^^^^- 
ing  to  the  practice  in  England^  hath  been  conceived  ne- 
ceiTary  to  be,  that  fome  of  the  Chief  Secretaries  of  State 
were  fent  to  the  AmbafTadors,  and  by  way  of  advice,  that 
underftanding  that  the  »common  People  having  receiv'd 
notice  of,  &c.  "  And  that  they  cannot  but  conceive  a 
"  jufl  fear  of  uncivil  carriage  towards  their  Excellencies 
{'  or  their  Followers,  if  any  the  lead  Incitement  fhould 
"  arife,  and  therefore  for  Quiet  of  the  State,  and  fecu- 
"  ring  of  their  Perfons,  they  were  bound  in  Lpve  and 
"  Refped  to  their  Excellencies  to  reftrain  as  well  them- 
"  felyes  as  Followers,  till  a  further  Courfe  be  taken  by 
*'  legal  Examination,  where  the  Afperfion  began,  the 
*'  fame  being  in  their  opinions  the  beft  and  the  only  way 
"  to  prevent  the  danger,  &c.^* 

Sometimes,  if  the  Parliament  be  fitting,  the  King  ac- 
quaints the  Lords ^  and  tlien  departs  -,  wiio  having  had 
Conference  with  the  Commons^  conclude  of  a  Mejjage  to 
be  fent  to  the  AmbafTadors,  (either  by  requiring  an  account 
of  the  matter  or  confining  of  them)  the  Perfons  to  be  fent, 
the  two  Speakers  of  both  Houfes^  with  fome  convenient 
number  of  either,  having  their  Maces,  or  Enfigns  of  Of- 
fices born  before  them  to  the  Ambaffador's  Gates,  and 
then  forborn  ;  and  then  requefting  Speech  with  them,  let 
them  know  that  a  Relation  being  made  that  Day,  in  open 
Parliamefit  of,  &c.  they  were  deputed  from  both  HoufeSy 
the  great  Council  of  the  Kingdom^  to  the  which  by  the 
Fundamental  Laws  of  tiiis  Nation,  the  chief  Care  of  the 
King's  Safety,  and  the  publick  Peace  and  Quiet  of  the 
Realm  is  committed ;  and  that  they  were  no  lefs  the 
iiigh  Court  of  Juftice^  or  Superfedeas  to  all  others,  for  the 
examining  and  punifhing  all  Attempts  of  fo  high  a  na- 
ture, ^c.  if  it  carry  truth  ;  and  having  executed  their 
Commiffion,  conclude  that  the  Houfes,  to  Ihew  that  re- 
verence which  they  bear  unto  the  Dignity  of  his  Mc^fter 


•158  '  €)f  9imbsiratio?0,     :    feookl 

by  their  Mejfagc^  declare  that  they  two  who  are  never  em- 
ployed but  to  the  King  alone,  were  at  that  time  fer\t,  i^f 
and  if  the  Houfes  fhall  upon  return  of  their  Speakers  con. 
The  Parlia-  ceivc  their  Anfwers  (if  it  be  a  Matter  that  requires  it)  art 
ment  not  fit-  fuch  as  may  juftly  deferve  their  being  confined,  they  ther, 
tmg,  the  Se-  j^^kt  an  addrefs  to  his  Mcijefty  to  confine  them  to  tjieir 
State  may^fig-  ^°'"^^^'  reflraining  their  departure  till  the  Prince  or  State, 
pify  the  like,  whom  they  reprefent,  be  acquainted  with  their  offence! 
if  occafion.  And  fo  it  was  done  in  44  H.  3.  to  the  Popeh  Legates  \[i 
^^'  England,  and  28  E.  i. 

XII.  If  a  Foreign  AmbafTador,  being  a  Pr^r^:^,  comn\its 
here  any  Crime  which  is  conlra  Jus  Gentium^  as  Treafoo, 
Felony,  Adultery,  or  any  other  Crime  which  is  againfl  eke 
Law  of  Nations,  he  lofeth  the  privilege  and  dignity  of  an 
The  opinion    AmbafTador,  as  unworthy  of  fo  high  a  place,  and  may 
of  the  Lord   be  punifhed  here  as  any  other  private  Alien,  and  not  to 
Coke,  4  Inftit.  be  remanded  to  his  Sovereign  but  of  courtefy. 
foL  153,  ^c.      XIII.  But  if  any  thing  be  malum  prohibitum  by  any 
A(5l  of  Parliame7it,  private  Law,  or  Cuftom  of  this  Realm, 
which   is  not  'malum  in  fc  Jure  Gentium,  nor  contra  Jus 
Xjentium,  an  AmbafTador  refiding  here,  fhall  not  be  bound 
by  any  of  them ;  but  otherwife  it  is  of  the  Subjeds  of  ei- 
ther  Kingdom  ;  for  if  a  French  Merchant  or  Spanijh  Mer- 
chant trades  or  imports  any  prohibited  Goods,  he  mull 
at  his  peril  obferve  the  Laws  of  England  •,  and  fo  it  was 
adjudged  Pafc.  ^'^  Eliz.  in  the  Exchequer^  Tomlinfon^  ^ui 
tarn,  verfus  Henry  de  Vale  ^  al.  upon  the  Statute  of  19 
//.  7.  Cap.  11.  but  if  an  AmbafTador  imports  any  prohi- 
bited Goods,  e  contra. 

The  Florentines  having  fent  AmbafTadors  to  Charh 
the  Fifth  and  Clement  the  Seventh,  being  then  at  Bolon'id^ 
together  with  their  Hon Hiold -fluff,  they  brought  covert- 
ly many  rich  Commodities  to  fell  and  traffick  with,  fup- 
pofing  that  they  might  be  free  from  paying  the  Gabel; 
J-jiust  A',  but  the  Seachers  of  the  Cuflom-houfe  having  difcovered 
i^-S»  it,   they  became  objeds  of  laughter  and  mirth  to  the&* 

lonians,  and  for  that,  as  unworthy  of  the  OfHce  of  Am- 
bafTadors, were  remanded  home  without  Audience. 

Sir  "Thomas  Challoner  having  been  fent  AmbafTador  to 
Spain  by  Queen  Elizabeth,  remitted  a  Complaint  to  the 
Queen,  that  his  Chefls  had  been  fearched  :  upon  which 

the  Queen  demanded  the  opinion  of  her  Council  in  the 


Chap.  X.       SDf  amfealTatlO^Jf*  .159 

]  point,  who  upon  the  whole  matter  refolved  the  AiSlion 
J  into  this,  Legato  omnia  ^equi  honique  ferenda  dummodo  Prin- 
Idpis Honornon  dire^e  violetur^  the  very  words  of  Mr  Cam^ 
^  ^m  An  AmbafTador  muft  bear  all  things  patiently,  pro- 
ided  that  the  Honour  of  the  Prince  (whom  he  ferves) 
J.  DC  not  diredly  violated. 

XIV.  The  Office  of  an  AmbafTador  does  not  include  a  Leg.JiT,  de 
protedion  private  but  publick,  for  the  King  his  Mailer,  %«./««a^ 
not  for  any  feveral  Subjedls  otherwife  than  as  it  concerns  ^^fa^^ij- 
the  King  and  his  publick  Minifters,  toprotedl  them,  and  §*^''"^^'  ''^'- 
procure  their  protedlion  in  foreign    Kingdoms,    in  the 
nature  of  an  Office  and  Negotiation  of  State  \  therefore  their 
Quality  is  to  mediate  and  profecute  for  them  or  any  one 
dF them,  at  the  Council-Table^  which  is  as  it  were  a  Couri 
'}f  State ;  but  when  they  come  to  fetded  Courts,  which  do 
md  muft  obferve  efiential  forms  of  proceeding,  fcil.  'pro- 
:iJI[us  legitimos,    they  muft  be  governed  by  them  :  And 
therefore  in  the  Cafe  of  Don  Diego  Serviento  de  Acuna^  ^^rd  Hohartt 
AmhaJJador  Lieger  for  the  King  o^ Spain,  who  libelled  in  the  ^^^'/r.  ^^i; 
Mmiral  Court  as   Procurator-General  for  all  -his  Matter's  68c.r^ii;. 
Subjeds,  againft  one  JoUiff  d^nd  'Tucker,  and  Sir  Richard  135,  173. 
Bingley,  for  two  Ships  artd  their  Lading  of  divers  kinds,  Hard.  183.   ■ 
Df  the  Goods  of  the  Subjedls  of  the  King  o^  Spain  gene-  ^  ^!f'  |^^' . 
rally,  and  not  naming  of  them  addu5i  ad  Port  de  Munfter^  260!  Xlev.  ' 
in  the  Preface  of  the  Libel  generally  againft  them  all,  and  25.  i  Fen, 
:hen  proceeds  and  charges  them  feverally  thus  ;  That  Jol-  ^7o>  ^08. 
'//and  Tucker  Captain  Pirat^e,   in  alto  Mari  belli ce  di^as 
Naves  aggrejji  funt,  i^  per  vim  i£  violentiam  took  them, 
ind  that  they  were  addu^^  in  partes  Hibernice,  and  that 
coming  into  the  hands  of  Sir  Richard  Bingley,  he  convert- 
ed them  to  his  own  ufe,  ('not  faying  where)  and  refufing 
to  render  them  being  required,  it  was  there  held  that  a 
Prohibition  fhould  go,  for  the  matter  is  Triable  merely  at 
the  Common  Law,  ai^d  that  fuch  a  Procuration  was  not 
^ood,  though  to  an  AmbafTador. 

pon  Alfonfo  de  Valefco  Anibaflador  from  the  Catholick 
King,  attached  Tobacoes  at  Land  here,  which  one  Cor- 
mn  a  Subje6l  of  the  King  of  Spain,  brought  hither,  and 
file  AmbafTador  by  his  Libel  fuppofed  to  belong  to  his 
l^after,  as  Goods  confifcated,  as  all  other  his  Goods  were. 
■  Sir  John  IVatts  the  Plaintiff,  in  the  fuggeftion,  prayed  a 
*'P/'^^/teV»,  which  was  granted  accordingly,  for  the  pro- 

i6o  SDt  ^nibaffaws.       fiooKi, 

peity  of  Goods  here  at  Land  muft  be  try'd  by  the  Cmm\ 
Law,  however  the  Property  be  guided  ;  and  it  was  like, 
wife  rul'd,  that  if  any  Subjed  of  a  Foreign  Prince  brin^ 
*  Goods  into  this  Kingdom,  though  they  were  confifot^. 
before,  the  Property  Ihall  not  be  queftioned  but  at  th( 
Common  Law,  Don  Alfonfo  verf.  Corvero,  Mich,  9.  ^ 
Hob,  212.  Hill.  9.  Jac,  upon  the  like  Libel  by  Don  Peim 
Surega  Ambafiador  for  Spain, 

XV.    Whether  an  Ambafiador  hath  Jurifdidion  over 
*  Difitngut      Y{\s  own  Family,  and  whether  his  houfe  be  a  San^uan^ 

ferme hac  inre  f.         ,,     .        ^       ■  •         i  i  i  ,^     ^ 

folent  aimina.  ^^r  all  that  fly  into  It,  depends  upon  the  conceffion  of 
ridc?arutamy\i\v[\  with  whom  he  refides,  for  this  belongs  not  to  the 
lib.  10.  uhi  Law  of  Nations -f  ;  and  it  hath  been  feen  that  an  Ambaf. 
Rex  ^^^^""^  fador  hath  inflidled  punifhment  on  his  own  Servants  and 
iraius  paca/ur:  Vaflals,  as  the  Mufcovite  did  here  in  England  ;  but  that 
Vide  eundem,  muft  be  purely  by  concefiion,  as  the  I'urk  permits  it  to 
lib.  II.  the  Englijh  Ambafiador  at  Conftantinople  :    But  Fugitives 

%  ^r^Belltac  ^^^^  ^^  ^"''^  ^^'^'^  Houfes,  nay,  their  own  Servants  if  they 
Fadsylib.i%.  ^^^^  greatly  offended,  cannot  be  drawn  out  by  force, 
§.4,  5,  6, 'J,  without  a  Demand  and  Refufal  ;   which  when  done,  it  Is 

then  become  as  an  offence  in  them. 
Rexfacifneme-  XVL  Moft  certain  by  the  Civil  Law,  the  moveable 
iu  regiumnv^.-  Qoods  of  an  Ambafiador,  which  are  accounted  an  ac- 
^^"TJcf":!.;,,!,,,  ceffion  to  his  Perfon,  cannot  be  feized  on,  neither  as  a 
'vafa  comitefqi  pledge,  not  for  a  payment  of  a  Debt,  nor  by  Omr  or 
fneos :  yet  an  Execution  of  Judgment ;  no  nor  by  the  King  or  States  leave 
^j^^^"^  where  he  refides  fas  fome  conceive)  for  all  coadlion  ough; 
brought  and  ^^  ^^  ^^^  ^^^"^  ^^  Ambafiador,  as  well  that  which  toucher^, 
left  at  the  his  necefiiiries  as  his  Perfon,  that  he  may  have  full  fecuri- 
Houfe  of  the  ty  ;  if  therefore  he  hath  contraded  any  Debt,  he  is  to  be 
Ambaffador,    called  upon  kindly,  and  if  he  refufes,  then  Letters  of  ^^ 

lowed  goodt '  ^'^^fi  ^^^  ^^  S^  ^^  ^^^^  Mafiier  *  -,  fo  that  at  lafl;  that  courfe 
and  conceived  may  be  taken  with  him  as  with  Debtors  in  another  Tern- 
no  breach  of  tory  ;  to  fome  this  may  feem  hard,  yet  Kings,  who  can- 
je^e^n^iiie  "°^  ^^  Compelled,  want  not  Creditors  -,  but  the  Lord  Ck 
Cafe^of  iiw.  ^^^nis  to  be  of  another  opinion  -f,  for  as  to  Contracts  and 
Colbert  for      Debts  that  be  good  Jure  Gentium^  he  mufl:  anfwer  here. 

Tork  Houfe, 

Mich.  28  Car.  2.  in  Banc,  Reg. 

*  Grotius,  lib.  2.   cap.  18. 

-|-  Cokej^.  Injiit.fol.  153.  Certain  it  is  that  none  dareth  prefume  to  meddle  eithff 
with  their  Perfons,  Goods,  or  Servants,  without  leave  had,  the  contempt  of  which  haS 
beenpunifhed  with  Imprifonment.     Lucai  4.  Vid.  Stat,  7.  J.  th»  12.  §.  5.     — 

XVII.  I' 

,Chap*X.        S)t  SimMK&HOtS.  x6i 

XVII.  If  an  AmbafTador  commits  any  private  outrage 
againft  one  of  the  Prince's  Subjects  with  whom  he  refides, 
unleft  it  be  to  defend  the  Dignity  of  his  Charge,  or  of  his 
Mafter,    it  hath  been   conceived  by  fome  not  to  be  ju-  * 

.  ftifiable  before  the  Prince  v/ith  whom  he  relides  ;  (fay  they) 
there  is  a  great  difference  between  the  Dignity^  and  Au^ 
ihrily  of  the  Prince  in  the  Country  of  another  Soveraign, 
for  he  may  well  retain  his  Dignity^  but  not  his  Autherity, 
.Ufually  Injuries  of  that  nature  being  done,  they  have  ad- 
.  mittcd  debates  at  a  Council  of  State^  where  the  Soveraign, 
with  whom  the  Minifter  of  State  hath  redded,  being  fatif- 
fied,  that  Reparation  ought  to  be  made  to  the  party  in- 
jured, he  hath  been  ordered,  or  at  lead  requeiled,  to 
comply  with  the  fame. 

XVIII.  But,  on  the  other  hand,  if  any  private  outrage 
be  committed  by  the  Subjeds  of  that  Prince  with  whom 
he  refideS)  upon  his  Perfon,  the  Offenders  may  be  fub- 
jei^ed  to  punifhment.  The  Queen  o^ Sweden  having  made 
the  incomparable  Grolius  Rafter  he  had  efcaped  by  Provi- 
dence out  of  Prifon,  and  by  a  greater  from  his  Countrymen) 

her  Ambaflador  with  Lewis  the  Thirteenth,  with  whom  Barkfeate  In 
he  refided  at  Paris^  coming  one  day  from  St  Germains,  men.or.Grotiu 
the  Secretary  of  Ceremonies  being  in  the  Coach  with  him, 
it  chanced  that  in  one  place  as  they  paifed,  a  great  number 
of  People  v/ere  in  the  way  feeing  of  an  Execution,  his 
Pofiilion.2Lnd  Coachman  driving  boldly  through  the  Com- 
pany, the  Archers  then  attending  the  Execution  with 
Ihort  Pieces,  (concerned  fomewhat  angerly  that  the  Exe- 
cution was  difturbed)  made  after  the  Coach,  fliot  his  Po^ 
fiilion   and   Coachman^    and   through    the   Coach,    even  ^ 

through  his  Hat  :  the  matter  coming  to  be  examined, 
the  King  ordered  three  or  four  of  them  to  be  hanged,  buc 
that  Good  Man  firft  pardoned  them  himfelf,  and  then  ob- 
tained the  King*s. 

XIX.  The  Republick  of  Vc7tice  employeth  generally 
more  Ambaffadors  abroad  than  any  other  State,  anH  they 
are  as  thofe  of  other  Princes  be.  Ordinary  a.nd  Extraordi- 
nary i  the  CommilTion  of  the  Ordinary  continueth  for  three 
Years,  but  he  who  refides  at  Conflantinople  is  not  called 
AmbafTador,  but  Bailio^  redding  there  perpetually  •,  and 
that  Republick  allows  him  a  greater  Provifion  to  fupporC 
his  Grandeur,  than  to  any  other,  and  by  the  Laws  of  Fe- 

L  nice 

j62  M  ^WltatCaJiOl^,  BookI, 

;//V(?  what  foe  ver  he  expends  is  allowed  him  upon  his  ac- 
counts without  any  examination  :  the  which  no  other  q[ 
their  publick  Minifters  of  State  have  like  privilege. 
•  By  the  Laws  of  Venice  there  can  be  no  extraordinary 

AmbalTador  employed,  unlefs  they  have  been  Ambaffa- 
dors  formerly,  and  upon  their  return  are  ftridly  examined 
of  their  Comportment  in  their  Legation,  and  are  to  dif- 
^oditras  de  Re-  covcr  what  Prefents  they  have  received  from  the  Prince 
pub.  lib. -J.  or  State  to  whom  they  were  fent,  the  concealment  of 
which  is  of  a  very  dangerous  confequence. 

Nor  may  any  of  their  Ambafifadors  receive  any  Prefer- 
ment from  any  other  State  during  their  Legation.  The 
jacAug.Thu-  Patriarch  of  Aquileia  dying,  Hermolao  Barbara  being  there 
Tua  JuJufthi  Ambaflador  for  that  Republick^  the  Pope  conferred  on  him 
Barbadico  that  Ecckjiajtical Dlgnily^  and  made  him  a  Cardinal \  which 
T>nk.tolVe'  being  known  at  Venice^  notwithftanding  he  was  a  Perfon 
^'^^^y/^^^o  of  great  Merit,  and  had  given  notice  to  the  Senate^  rich, 
'"^    '  well  allied,  and  had  good  Friends,  they  fent  exprefs  com- 

mand that  he  fhould  refign  the  Patriarchpoip^  otherwife 
they  would  take  from  his  Father  the  Prociirator'Jhip  of  St 
Mark^  and  confifcate  all  his  Eflate. 

But  if  fuch  Ambaffadors  have  received  any   Prefent, 

Gift,  or  Reward,  from  any  Foreign  Prince  or  Republick, 

PauIusParuta  and  fuch  Miniftcrs  of  State  are  thought  worthy  of  retain- 

7ib^''^'  ^^'^'    '"§  ^^^  i'^^m^^  fuch  a  Grace  muil  pafs  by  the  Suffrage  of 

the  Senate,  to  oblige  them  more  to  the  benevolence  of 

the  Republick,  than  to  the  bounty  of  any  Foreign  Prince. 

The  confideration  of  which  put  the  fame  generous  fcrupie 

into  the  Breaft  of  Sir  Amias  Paulet^  who  returning  from 

Francis  HottO'  his  AmbaiTy  in  France^  would  not  at  his  departure^reccive 

man,  fol.  23,  from  the  French  King  the  Chain  of  Gold  which  is  given 

^^'  of  courfe,    till  he  was  half  a  League  out  of  Paris.    But 

more  famous  v/as  the  a6lion  of  Sir  Leoline  Jenkins,   the 

EngliJJj  AmbafTador  at  Nimeguen,  who,  though  after  the 

Treaty  concluded,  abfolutely  refufed  the  French  King's 


XX.  By  the  Laws  of  Nations,  in  the  Reception  of  Am- 
bafladors,  thofe  from  a  King  are  generally  introduced  by 
an  Earl  or  Count,  thofe  from  a  Duke  or  Republick  by  a 
Baron  •,  nor  are  they  to  be  allowed  that  Ktonour  but  only 
at  their  firfl  and  laft  Audience, 

XXL  Pro- 

dnAP.  XL   ^t^bttttion,  &c« 


'■  XXI.  Prophane  Hiftories  are  full  of  Wars  becaufe  of 

wrong  done  to  Ambafllidors  ;  and  in  the  facred  Story  is 

extant  tiie  memory  of  the  War  which  David  upon  that 

Ground  waged  againll  the  Ammonites  :    nor  doth  Cicero 

i^fleem  any  Caufe  more  juft  againfl  Mithridates  ;  and  at 

this  day  not  only  Lawyers  *,  but  Divines  f  are  all  of  the  *  q^q^^  i  ^? 

fame  opinion,  That  a  War  cannot  be  more  juftly  com-  r.  i8.  §.  n. 

aienced  than   for  the  Violation  done  to   their  Publick  t  Montague^ 

\K'  'CI  w«  Ads  and  Mo- 
■                           M  45°' 

""  CHAP.      XL 

j)f  ti^e  ist'sijt  of  tselifierfng  Pettong  flcti  fc| 


VII.  Whether  an  innccent  P  erf  on  may 
be  defer  ted  and  yielded y  if  War  bt 

VIII.  Whether  an  innocent  PerfoH 
refufedtohe  delivered  up ^  ought  to 

yield  himfelf. 

IX.  Jf  Charity  in  an  innocent  to 
yield  himfelf    njuheiher  Compulfiori 

may  be  ufcd  if  he  refufes. 

X.  Whether  this  ofdeli'verivg  up  doe i 
extend  to  Soniereign  Princes  driven 
out  of  their  Country. 

XI.  Perfons  running  anvay  woith  the 
Puhlick  Revenuey  wohere  their  Per' 
fans  and  Goods  ha've  been  feized 
till  reparation  and  fatisfaBion  be 

\,  Where  Superiors  may  become  cnU 

pable  for    the    Crimes    of  their 

II.  Offences  by  ivhom  properly  punifh- 

tdy  nuhether  by  the  injured  State 

or  they  into  nxihofe  Territory  the  of- 

ftnder  is  fled. 
til.  Whether  Kingdoms  and  States 

ought  to  deliver  up  Fugitives,  if 

required,  or  net.  ^ 

IV.  Where  Perfons  are  fed,  the  pi  a- 
cts  nubitber  they  come,  ought  to  be 

V.  Honu  dijlinguifhedy  and  vohen  to 
hefunijhed  or  delivered. 

VL  Whether  an  innocent  Man  may 
he  deferted  aJid  delivered  up  to  the 
enraged  Poiver  that  demands  him* 

I.  TT^Athers  are  not  bound  for  the  fault  of  their  Children, 
JP  nor  Mafters  for  thofe  of  their  Servants ;  nor  Prin- 
ces for  the  A6lions  of  their  Subje6ts,  unlefs  they  become 
partakers  in  the  Crime ;  the  which  may  be  done  in  two 
refpeds,  by  fufferance  and  receipt  ;  therefore  if  Princes 
M  fuffer  or  Countenance  their  Subjefts^  by  Pidlures  or 
Libels,  or  otherwife^  to  abufe  another  Nation  or  Common 
'^^dth^  it  is  the  fame  as  if  they  ihould  authorize  it.  Bru- 
ius  to  Cicero^  How  can  you  make  me  guilty  ?  T'es.,  well 
enough^  if  it  were  in  you  to  hinder  it  y  but  receipt  may 
admit  of  fome  further  fcrutiny. 
'**^^  La  II.  Comwon* 

Xeno  inter- 
ceding for  the 
Magnets  to  T, 
^inius  and 
tne  Legates 
with  him  be- 
foLight  them 
with  tears :  ni 
unitis  amcnti- 
fuo  quemque 
periculo facer  Cy 
Liv.  L  40. 

164  (Df  P^DteCttOn,  &c.  Book  I 

II.  Commonwsalths  being  inftituted,  it  was  agreed  that 
Faults  of  Particulars,  which  do  properly  belong  to  their 
owA  Society,  fhould  be  left  to  themfelves  and  their  So- 
veraigns,  to  be  puniihed  or  connived  at,  as  they  jud<^ed 
mofl  fit. 

Yet  that  Right  is  not  fo  abfolutely  left  to  them,  but 
Offences,  which  tend  to  the  Deftruftion  of  Society  or  Go- 
vernment,  whereof  Treafon  is  the  chiefeft,  may  feem  to 
be  excepted  *,  for  if  a  Subjedl  fhall  commit  an  A61  tend- 
ing to  the  Subverfibn  of  his  Soveraign's  Government, 
the  fame  is  an  Offence  that's  fubjedl  to  an  univerfal punijh- 
meni,  i.  e.  it  is  to  be  punifhed  every  where  •,  and  the  Go- 
vernors into  whofe  Territory  fuch  fly,  feem  to  have  a  Right 
RolPsAhndg-  Qf  profecuting  for  the  Offence  :  In  Civil  Adlions,  whldr 
l^^er'fcJs'  ^^"^  ^^  Commerce  that  fupports  Society,  the  Subjeds  of 
foreign  Nations  having  juftly  contraded  Debts  in  their 
own  Country,  may  obtain  Juflice  in  another ;  by  a  ftronger 
Reafon  it  is  thought,  that  Princes  or  Republicks  that  have 
received  publick  Injuries,  have  Right  to  require  Punilli- 
ment  for  the  Indignity  that  is  offered  them,  at  leaft  for 
that  which  tended  to  the  Subv^erfion  of  their  Government, 
and  to  have  the  Offenders  delivered  up. 
For  the  |jj^  'y^q  Queftion  is  Illuftrious,  Opinions  grounded  on 

oftheCaufe  ft:veral  great  Precedents  have  been  both  ways  produced: 
ought  to  pre-  It  hath  been  generally  held.  That  thofc  Kingdoms  where 
cede  the  Red-  the  Offenders  are  fled,  ought  to  do  one  of  the  two,  either 
^f '° V  ""*  punijh  them  according  to  their  Defer ts  being  called  tipon^  or 
dedere  caufa  ^^^'"^^  ^^^^^^  ^^  ^^^  Jiidgv.ient  of  the  offended  State  \  others  on 
non  cognita  the  Contrary  \  moft  certain  it  is  by  the  delivering  up^'n 
Plutarch  in  underftood,  to  leave  him  to  the  legal  Judgment  of  that 
his  Romulus.  Prince  or  State,  whom  he  hath  offended  :  And  fuch  was 
the  Declaration  of  Ferdinand  King  of  Spain^  who  had  been 
Attainted  by  often  requefted  by  Henry  the  Seventh  to  deliver  up  Ednud 
At\  of  Parlia-  ^^  ^.  p^^i  g^^j  ^^  ^^^^^^  j.^ig  Subjea:,  then  fled  for  Protec- 

Co.  hji.  foi.    ^^^^  ^o  that  Prmce's  Country,  but  was  always  reruled ; 

180,  but  being  continually   importuned   by  Promifes  that  he 

Ihould  not  be  put  to  Death,  caufed  the  Earl  to  be  deliver'd 

up  to  him,  who  kept  him  in  Prifon,  and  conftruing  his 

^         promife  to  be  perfonal  to  himfelf^  commanded  his  Son  Henrj 

imH.  8     ^^^^^  ^^^  Deceafe  to  execute  him,  who  in  the  fifth  Year  of 

Pepin  receiv    ^^^  Reign  in   cold  Blood  performed   the  fame.     But  the 

ed,  and  would  Malicc  of  that  politick  Prince  the  Father,  and  the  uncon- 

not  deliver  up  troul^^^^^ 

iiCHAP.xi.     £Df  PjotectfOtt,  &c*  165 

'troulable  Will  of  the  Son  are  Precedents  but  of  fmall  thof*  that 
^  Force  5  the  Example  of  which,  not  long  after,  gave  the  ^^^  ^^  ^|«» 
^^  French  King  occafion  to  beware  of  trufling  the  latter  with^^J^^^^p'^^^'^'^^ 
\  aSiibjedl  of  his  on  the  like  occafioh  ;  for  Cardinal  Pool  not  by  Tyranny. 
^  many  Years  after,    coming  AmbaiTador  from  the  Pope  Fredegar  in 
>lto  the  French  King,    they  both  being  then  in  Amity,  reh.Pep.Jn. 
land  Henry  the  Eighth   in  League  with  the  latter,  but  in  ^ 
i  Enmity  with  the  firft,    requefted  to  have   the  Cardinal 
i  delivered  up,    but    could   not    prevail,     being    doubly 

*  armed,   as  the  AmbaiTador  of  a  Sovereign  Prince,  (for 

*  fuch  is  the  Pope)   and    in  the  Territory  of  a   foreign 
State.  ^  "^    . 

The  Ifraelitcs  required  of  the  Benjamites  to  deliver  up  . 
the  wicked  Men  -,  the  Philifti'ries^  Sampfon,    Cato  gave  his 
Vote  that  C^ejar  fhould  be  delivered  to  the  Germans^  for 
fpoiling  them  without  juft  Caufe.     Nor  are  nocent  Per- 
fons  injured,  if  they  are  either  delivered  up,  or  punifli-^ 
ed ;  yet  does   it  not  thence    follow   that  they  muft  be 
delivered  up  or  puniflied  :  The  Romans  delivered  up  thofe 
that  had  done  Violence  to  the  Carthaginian  AmbafTadors ; 
yet  the  AmbafTadors  of  the  Abajfines  having  been  traite- 
roufly  murthered  by  one  of  the  Templars  at  Jerufalem^ 
the  Offender  being  demanded,  that  fo  Juft  ice  might  ht  Tynui,  lib. 20I 
executed  on  him  for  the  A<3:,  the  Grand  Majler  anfwered,  ^^P-  ^.S-  ^««^ 
That  he  had  already  enjoined  him  Penance,  and  had  di-  ^*^^* 
refted  him  to  be  ftnt  to  the  Pope,  but  abfolutely  refufed 
to  deliver  him  up. 

IV.  But  then,  and  as  in  this  lafl,  fo  in  all  other,  the  ^  ^^^  ^^^  ^^ 
Offender  muft  have  committed  fom.e  publick  Offence  *,  churches  be- 
as  Treafon  •,    for  moft  certainly  it  extends  not  to  private  yond  Seas  for 
Injuries,  becaufe  there  is  no  Precedent  that  ever   a  War  private  Of- 
v/as'begun  for  fuch,  thou&h  they  may  contribute  much,  fences,  which 

irir        ,.1  1  ,/-.t#-  -r.-  r^re  unjverial 

but  tor  thofe  which  tend  to  the  Subverfion  or  Rum  or  sanauaries, 
a  Country,  they  often  have  been  delivered  up  *,    Jugur-  the  Oifenclers 
thao^  Bocchus  in  Salluft^  So  Jhall  thou  at  once  free  us  from  ^i^ve  been 
th  fad  neceffity  of  profecuting  thee  for  thy  Err  or  ^    and  him  ^l^^^^^:J^ 
for  his  Treafon.      And  by    moft  Writers  it   is  agreed,  PerdinLd 
that  fuch  Offenders   muft  either  be  delivered  up   or  pu-  Lord  Cham- 
niihed,    the    Election    is    left    to   their    Choice,     into  Jerkin  xvas 
whofe  Territory  they  are  fled  ;  though  fome   have  ^  held,  p^^'^^^^^^f 
that  in  cafe  of  Protedion  or   Sanduary   for  fuch  un-  the  Church 

L  3  fbltunat-e  and  burnt,  for 

i66  tSit  P^OteCttOtT,  &c.  BooKl 

forcing  a*     fortunate    Perfons,    Princes    do    make    their   Countries' 
Noble  Virgin,  jr^^^^^  ^_ 

Mariana,  lib.      •'■^  ' 

1 1 .       Charles 

"Duke  of  Burgundy  delivered  up  to  Lewis  the  Eleventh,    the   Earl  of  St  Paul,  Con- 

ilable  of  France^    who  flying   to  fome  of  his  own  Cities,    obtained  Letters  of  Safe- 

Conduft  to  come  and  commune  with  the  Duke,    in  order  to  the  making  his  Peace 

with  the  King  ;    but   the  Duke  after  he  had    him   in   Cuftody,    delivered   him  to 

the  King    of  Trance y    who    immediately  after  cut  off  his   Head.      Fhil.  Comkis 

I.  4.  c.  12. 

-f  Ludo-vicus   Pius  the  Emperor  received   thofe    that  Hed    to  him  from   the  J?j. 

man  Churchy    as  Appears    by   his    Decree,    Anno   817.    and  Luther  himfelf  did  not 

want  Princes  to  proted  him  from  the  Fury  of  St  Peters  Chair.      Fide  his  CiJL 


jT.  ^intus  Flaminius  fent  AmbalTador  to  Frufms  King 
of  Bithynia^  for  the  procuring  the  delivering  up  the  brave 
but  unfortunate  Hannibal^  who  accordingly  being  feized 
Sir  Walter  on,  /  will  now^  fays  he,  deliver  the  Romans  of  that  Fear 
Ralegh's  Hift.  i^Q^ich  hath  fo  many  Tears  pojfejl  them  ;  that  Fear  which  mda 
l/i^^'Is  ^  ^^^'^  impatient  to  attend  the  Death  of  an  Old  Man  :  ,This 
Vi^ory  (?/"  Flaminius  over  me^  who  am  difarm^d  and  hetrafi 
into  his  Hands ^fhall  never  he  numbered  amongfi  the  reft  ofkis 
Heroical  Deeds :  No^  itjhallmake  it  manifefi  to  all  the  Nations 
cf  the  JVorldy  how  far  the  aniient  Roman  Virtue  is  degentr&U 
end  corrupted  ;  for  fuch  was  the  Nohlenefs  of  their  Forefa- 
thers^ as  when  Pyrrhus  invaded  them  in  Italy,  and  was  red] 
to  give  them  Battle  at  their  own  Doors ^  they  gave  him  Know- 
ledge of  the  Treafon  intended  againfi  him  by  Poifon  ;  wherm 
ihefe  of  a  latter  Race  have  employed  Flaminius,  a  Man  wk 
bath  her ef ore  been  one  of  their  Confuls^  to  praBife  with  Prufias, 
contrary  to  the  Honour  of  a  King^  contrary  to  his  Faith  g^^ 
md  contrary  to  the  Laws  of  Hofpltality,  tojlaughter  or  deliver 
up  his  own  Guefl.  Then  took  a  Draught  of  poyfon^  and  dfL 
V.  Though  Kingdoms  and  States  are  looked  upon  as 
places  of  Refuge  ;  yet  that  mufb  be  underilood  for  thofe 
that  are  perfecuted  with  caufelefs  Hatred,  not  to  fuch  as 
have  committed  that  which  is  injurious  to  human  Sode- 
ty,  or  to  other  Men.  Gilippus  the  Laccnian  in  Diodorus 
lih.  13.  Siculus^  fpeaking  of  the  Right  of  fuch  miferable  Fugitives, 
faith,  They  that  introduced  thefe  Rights  atfirfi^  meant  the  Un- 
fortunate Jhould  expe^  Mercy ^  the  Injurious  Punijhment — • 
After — Thefe  Men ^  if  by  the  unjufl  Defire  of  that  which  is 
another's^  they  have  fallen  into  thefe  Evils,  muft  not  accuji 

Fortune^  nor  imfofe  on  themfelves  the  Name  of  Supplicant^ 


CflAP.  XL      M  l&jotectton,  &c.  167 

for  that  hy  Right  belongs  to  them  that  have  an  innocent  Mind^ 
mi  dvnfe  For  time, 

Carum  occidifli,  dum  vis  fuccurrere :  nullum 
Crimen  habes  -,  manus  eft  ibi  purior,  ac  fuit  ante. 

^\ii  the  Life  of  thofe  Men  full  of  wicked  A^s^  Jhiit  up  againfl; 
tkm  all  Places  of  Refuge,  and  leaves  no  room  for  Compaffion. 
Cicero  hath  a  Saying  out  of  Demofihenes  :  We  muflfhew  Com^ 
puffion  to  thofe  whom  Fortune,  not  their  own  evil  Deeds,  hath 
made  Mlferable.     And  by  the  holy  Law,    when  any  one 
had  been  flain  by  an  Ax  flipping  out  of  another's  Hand, 
the  Cities  of  Refuge  were  open  :  The  moft  holy  Altar  it 
•ft If  was  no  Protedion  for  thofe  that  had  flain  an  inno- 
'cent  Man  malicioufly,    or  had  troubled   the  Common- 
wealth ;  which  Law  Fhilo  explaining,  faith,  Unholy  Men 
have  no  Entertainment  in  the  Holy  Place.  Lycurgus  the  Ora- 
tor relates  that  one  CalUfiratus,  having  committed  a  Ca- 
pital Fault,    and  advifmg  with  the   Oracle,  received  an- 
fwer,  Tioat  if  he  went  to  Athens  he  [hould  have  Right :  And 
thereupon,  in  Hopes  of  Impunity,    he  fled  to  the  moft 
'holy  Altar  there,    notwithftanding  which  he  was  taken 
from  thence,  and  put  to  Death  by  the  City  moft  obfer- 
vant  of  her  Religion,    and  fo  the  Oracle  v/as  fulfilled. 
Princes  indeed  (faith  'Tacitus)  are  like  Gods,  hut  neither  do 
the  Gods  hear  the  Prayers  of  Supplicants,  unlefs  they  he  jufi, 
.Such  then  are  either  to  be  puniflied  or  delivered  up  at 
leaft  J  yet  furely  this  hath  been  obferved  to  extend  only 
to  thofe  Crimes  that  touch  the  State,  or  at  leaft  are  of  a  ^j^^y  ^f  j^^^, 
very  heinous  Nature  ;  fometimics  they  are  exprefsly  ftipu-  land  lately 
lated  by  Leagues  to  be  delivered   up  •,    however  this  is  cielivered  up 
to  be  obferved,    that  fuch  fort  of  Fugitives  and  Suppli-  ^^^  ^^P^'^us 
cants,  be  they  Foreigners  or  Subjects,  are  to  be  protect;-  Cook  that 
ed  till  they  have  been  fairly  tryed  ;  and  if  that  where-  had  been  ia 
of  they  arcv  accufed,    be  not  forbidden  by  the  Law  of  the  wicked 
Nature  or  Nations,  the  Caufe  muft  be  tryed  and  adjudg-  ^^^.^/^^^T^ 
ed  by  the  Municipal  Laws   of  that  Kingdom  or- State  Countefs  of 
from  whence  the  Crime  doth  arife.     From  which  it  may  ^oi[fons  ia 
be  obferved,    that  a  Fault  committed  in  England^    and  Franc^^ 
the  Perfon  flying,    and  Requeft  made ;    yet,    by  Reafon 
that  none  can  by  the  Laws  of  that  Nation  be  tryed  but 
f «•  Pares^  nor  then  but  in  Perfon  \  it  will  thence  follow, 

L.  4l  th3..t 


^^^  ©f  ^tOttCtion,  &c.  Book  I. 

that  fuch  may  feem  out  of  the  general  Rule  :  However, 
it  may  ftand  with  the  highefl  Reafon,  that  the  Fad  and 
Proof  being  remitted  over  with  the  Requefl,  there  may 
appear  a  jull:  Ground  for  .the  Demand. 

VI.  Whatever  the  Opinion  of  thofe  Writers  have  beea 
the  Pra6lice  of  latter  Ages  hath  feemed  to  incline  other- 
wife.     Qnc'en  Elizabeth  demanded  Morgan  and  others  of 
her  Subjcds  fled,  into  France^  that  had  committed  Treafon 
againfb  her;  the  Anfwer  of  the  French  King  was.  Si  quii 
in  Gallia  machinareniur^  Regem  ex  jure  in  illos  animadver- 
furum  \fin  in  Anglia  quid  machinatifueriyit^  Regem  non  pojje 
de  eifdem  cognofcere^  [fj  ex  jure  agere  %  omnia  Regna  profu- 
gis  ejfe  lii?era  ;  Regum  inlerejje,  ut  fui  qui/que  Regni  libcrtO' 
tes  tucatM\    imo  Elizahetham  non  ita  pridem^  in  fuum  Re^* 
^^Eli^.Camr  nam  Mount gumeriiim^  Principem  Condceum^  iS  alios  e  Genu 
^it^^c'^l'    Gallica  admijijje^  (^c,  and  they  were  never  delivered  up: 
JnL  icSc*     ^^^  ^^^  ^^^^  ^^^^  ^^^  returned  by  the  King  of  Scotland^  %r 
he  promifed  that  he  would  tranfmit  Fcrnihtirft  and  the^ 
Chancellor  too,  if  they  were  convi6ted  by  a  fair  Tryal. 
tiv.  ^■^.  2  2.        Perfeus  King  of  Macedon^  in  his  Defence  to  Martim^ 
cap.  37.  fpeaking  of  thofe  that  were  faid  to  have  confpired  againft 

Eumenes  :  So  focn  as  I  was  admonijhed  hy  you^  and  finding 
the  Men  in  Macedonia,  I  commanded  them  away^and  chargd 
them  never  to  return  into  my  Dominions,  The  Cry  of  the 
Anno  1660.  JRC^tl!  ^aCtpt'S  Blood,  juftly  procured  them  of  Hollad 
In  the  Alii-  to  deHver  up  the  Regicides  to  the  injured  Succeflbr.  And 
ance  between  from  the  Crown  of  Denmark  it  was  exprefsly  ftipulated 
\eb^\-^\66o  ^^^y  fl^LOuld  be  delivered  in  thefe  Words  :  Item  quod  ft 
provided  for'  ^^^^  eorum  qui  rei  funt  illius  nefandi  Parricidii  in  Regm 
in  the  fifth  C  A  R  O  L  U  M  Primum  heatiffim^e  Memorise  admijft^  ac  k' 
Article.  gitime  de  eodem  feeler e  attinBi^  condemitati^  vel  convi5fi^  (^c. 

"  If  any  of  them  who  are  guilty  of  the  horrid  Murder 
«'  committed  upon  King  CHARLES  the  Firft  of 
BlefTed  Memory,  be  either  now  in  the  Dominions  of 
the  King  of  Denmark  and  Norway^  or  fliall  hereafter 
*«  come  thither,  that  as  foon  as  it  fhall  be  known  or  told 
to  the  King  of  Denmark^  or  any  of  his  Officers,  they 
be  forthwith  apprehended,  put  in  fafe  Cuftody,  and 
*'  fent  back  into  England^  or  be  delivered  into  the  Hands 
<'  of  thofe  whom  the  King  of  Great-Britain  fhall  order 
1^  to  take  charge  of  them^  and  bring  tliem  home. 

VII.  Mod 

ciAP.xi.     ©f  ^tmction,  &c.  169 

VII  Moft  certain  it  is,  if  War  be  threatned  to  a  Na-  That  poli- 
„on  or"  People,  if  they  deliver  not  up  the  Offender,  tho'  -^^P'^-f^. 
perhaps  he  is  innocent,  and  that  fuch  is  the  Malice  ot  his  ^,^^^  g^^e  ^^^ 
Enemies,  that  they  know  they  will  put  him  to  death,  yet  Scots  a  more 
he  may  be  deferted,  efpecially  if  that  Nation  or  Kingdom  equitable  an- 
is  inferior  to  others  ;  but  then  the  fame  ought  not  to  be  ^^'''^^2^ 
done  rafhly.     The  Ifaliaji  Foot  that  forfook  the  unfortu-  ^a  Bothnvell, 
nate  Pompey  before  all  was  loft,  being  afifured  of  Quarter  flie  anfwered, 
from  the  vidtorious  C^far^  were  condemned  by  moft  that  that  fhe  would 
reported  the  Story  of  that  day.  hlm^Tol' 

fend  him  OMt  oi  England.  CamhJen  Anno  i595» 

Tope  Alexander  (in  the  mortal  Feud  between  him  and 
the  Emperor  Frederick^  who  favoured  05favian  the  Anti- 
pcpe)  fled  difgui fed  to  Venice.,  the  Duke  and  Senate  being 
jealous  that  the  Emperor  would  demand  him,  fent  an  Em- 
bafify  to  the  Emperor  to  endeavour  a  Mediation  and  Peace, 
which  was  no  fooner  offered,  but  the  Emperor  broke  out 
into  a  Rage,  bidding  them  go  home,  faying  ;  "  Tell  your 
"  Prince  and  People,  that  Frederick  the  Rojnati  ¥.m^txov 
"  demands  his  Enemy,   who  is  come  to  them  for  Suc- 
"  coiir,  whom  if  they  fend  not  prefently  bound   hand 
"and  foot,  with  a  fure  Guard,  he  will  proclaim  them 
"  Enemies  to  him  and  the  whole  Empire^  and  that  there 
"  is  neither  Alliance  or  Laws  of  Nation  which  fhall 
"  be  able  to  free  them  from,  revenge  for  fuch  an  Injury,  to 
*'  profecute  which  he  is  refolved  to  overturn  all  divine 
"  and  human  Laws,  that  he  will  fuddenly  bring  his  Forces 
•*  before  their  City,  and  contrary  to  their  expedlation, 
*'  plant  his  Vi^orious  Eagles  on  the  Market-place  of  St 
"  Marl:'     This  Mefiage  being  faithfully  delivered,  the  Hiji,  Relp. 
Senaie  decreed  Arms^  Arms  •,  and  while  they  were  pre-  ^7-/''  fl'" 
paring,  News  was  bought  that  Otho,  the  Emperor's  Son,  SkTof  rT- 
and  General  of  the  Cafarean  Fleet,  was  entred  the  Gulph  nhey  Anna. 
with  feventy-five  Gallies  ;  the  moft  valiant  and  religious  Se-  1164. 
\  kfiiano  Cyani  refolved  to  meet  hitn,  and  having  encountred 
tij  them  on  the  Coafl  of  Iflria,  defeated  Otho,  and  all  his  Na- 
I  val  Forces,  taking  forty-eight  Gallies,  Otho  their  Admiral 
li  and  the  refl  either  burnt  or  deflroyed  ;  he  returned  in  Tri- 
flumph  for  Venice^    and  not  long  after  Frederick  became 
"convinced,  that  Heaven  fights  the  Babies  of  the  Innocent, 


lyo  flDf  Protection,    &c.  Book 

and  on  his  knees  begg'd  pardon  of  Alexander  the  Fu&itjy^ 

Lewis  the  Eleventh  of  France  required  by  Ambaffadon 
of  Philip  Duke  of  Burgundy^  the  delivering  up  of  Sir  0//^^ 
de  la  Marche^  (who  being  a  Burgundian^  had  wrote  (aj 
was  conceived)  fomewhat  againft  the  Claim  of  the  French 
to  feveral  Territories)  upon  a  publick  Audience  at  U^ 
they  were  anfwered  by  Duke  Philips  "That  Oliver  was5/^ 
ward  of  his  Houfe^  a  Burgundian  hy  Birth^  and  in  no  refpeS 
fuhje^i  to  the  Crown  of  France  ;  notwithflanding  if  it  could 
be  proved  that  he  had  faid  or  done  any  thing  againft  the 
King's  Honour^  he  would  fee  him  punifhed 
his  faults  fhould  deferve. 

VIII.  But  admitting  that  fuch  an  innocent  Perfon  ou^ht 
not  to  be  delivered  up,  whether  he   is  bound  to  yield 
himfelf  ;  by  fome  it  is  conceived  he  ought  not,  becaufc 
the  nature  of  civil  Societies,  which  every  one  hath  entred 
into  for  his  own  Benefit,  doth  not  require  it ;  from  which 
it  follows,  that  though  fuch  Perfons  are  not  bound  to  that 
by  Right,    properly  fo  called,    yet  it  doth  not  follow, 
but  in   charity  he  feems  bound  to  do  it  *,  for  there  may 
be  many  Offices  not   of  proper  Juftice,    but  of  Lqve, 
which  are  not  only  performed  with  praifes,  but  alfo  can- 
not be  omitted  without  blame  ;  and  fuch  indeed  is  the 
A61  of  fuch  a  Perfon's  voluntary  yielding  up  himfelf,  pre- 
ferring the  Lives  of  an  innocent  Multitude  before  hij 
Uein  de  finlhm  ^^^'    Ciccro  for  P.  Sextus,  If  this  had  happened  tomej&il 
3 .    Fir  bonus  ing  with  my  Friends  in  fome  Ship,  that  Pirates  furroundin^ 
i^fapiensy  iff  US  fhodd  threaten  to  fink  us,  except  they  would  deliver  m, 
Legibus parens, ^  J  qjDGuld  rather  havc  cafl  myfclf  into  the  Sea  to  preferveL' 
vton7gnarusl^u-  ^^^  ^^^^  ^^  hring  my  Friends  either  to  certain  Death,  or  in- 
iilitati  omnium  to  great  danger  of  their  life, 

plufquam  unius 

alicujus^  autfues  confuUt.  And  in  Li'uy  there  is  a  moll  excellent  Saying  of  fome  M^- 
^ans:  Equidem  pro  P atria  qui  lethum  oppefijjent  pepe  femdo  audi'vi  \  qui  patriam  fn  ji 
ferire  a^uum  cenferent,  hi  primi  inventi/unt.    Liy.  lib,  45.  ^^c^Z^, 

IX.  But  whether  fuch  an  innocent  Perlbn  may  be 
compelled  to  do  that  which  perhaps  he  is  bound  to  do, 
may  be  a  queftion  \  rich  Men  are  bound  by  the  precept  oi 
Mercy  to  give  Alms  to  the  Poor,  yet  cannot  be  compelJ*^ 
to  give  :  it  is  one  thing  when  the  parts  are  compared 
among  themfelves,  another  when  Superiors  are  compared 


Chap.  XI.     iSDf  Protection,  &c.  171 

to  their  Subjedls  ;  for  an  Equal  cannot  compel  his  E-  *  leg.  De/ert, 
Qual,  but  unto  that  which  is  due  by  right  ftridlly  taken  ;  f^^^^^M>.3- 
yet  may  a  Superior  compel  his  Inferior^  to  things  which  p^3/  Pho^ 
Virtue  commands  ;  in  a  Famine  to  bring  out  Provifions  don:  Fides agi 
they  have  ftored  up,  to  yield  him  *  to  Death  that  deferts  njifadeditosmn 
hi<j  Colours,  or  turns  Coward,  to  muI6l  thofe  that  wear  ex-  ^if':  ^^^j:'^^ 

"'^  ^^'  5  1    1      ,-1         -nr      .  •      •  1-1         Statins judtce- 

ceillve  Apparel  r ,  and  the  like.  Fhocion^  pointing  to  his  dear  ^^^  ^^  ^ 


Friend  Nuocles  faid,  Things  were  come  to  that  extremity^  that  aliquos  mala 
if  Alexander /?<?///i  demand  him.,  he  jhonld  think  he  were  to  he  f^^re,   quam 
delivered  up.     It  hath  Teemed  that  fuch  an  innocent  Per-  "^l^^m!^"'''^^ 
fon  might  be  deferred  and  compelled  to  do  that  which 
Charity  requires ;  but  the  late  ROYAL  MARTYR  The  Son  of 
feemed  of  another  Opinion,  when  he  came  to  die,  in  the  ^^Tflf  Tson 
Cafe  of  the  Britijh  Protomartyr  Strafford.  of°fo  ^great^a 

Father,  that 
he  contended  with  Anthony  and  Augujlus  about  the  Empire  of  the  World ;  this  Pojnpey 
entertaining  Anthony  and  Augujlus  in  his  Galley,  the  Captain  which  commanded  it, 
demanded  leave  of  him  to  weigh  Anchor  and  to  carry  away  his  Guefts,  and  to  make  his 
Rivals  Prifoners ;  he  anfwered  him,  that  he  ought  to  have  done  it  without  telling  him 
of  it,  and  fhoald  have  made  him  great  without  having  made  him  forfworn  :  Certain- 
ly, an  honed  Perfon  will  never  be  of  the  Mind  of  this  Captain  :  therefore  in  fuch 
extremities  Counfellors,  either  for  high  advantages,  or  in  the  great  neceffities  of  their 
Trince  (hould  ferve  their  Mailers  with  their  Eftates  and  Goods,  but  not  with  their 
Honour  and  Confcience. 

X.  But  this  delivering  up  does  in  no  refpe6t  extend 
to  Sovereign  Princes,  v/ho  are  by  Divine  PermifTion  un- 
fortunately driven  out  of  their  own  Country ;  and  there- 
fore memorable  is  the  great  Treaty  commonly  called  by 
the  Flemings^  Intercurfus  Magnus.^  where  there  was  an  ex- 
prefs  Article  againft  the  reception  of  the  Rebels  either  of  '  ^  H.  7. 
Henry  Nil,  or  of  the  Jrch-Buke  of  Burgundy  by  others,  ^^^s^lve^h^^^^ 
purporting  that  if  any  fuch  Rebel  (hould  be  required  by^^/.  162.    *■ 
the  Prince,  whofe  Rebel  he  was,  of  the  Prince  Confede-r 
rate,   that  forthwith  the  Prince  Confederate  fhould  by 
Proclamation  command  him  to  avoid  the  Country,  which 
if  he  did  not  within  fifteen  days,  the  Rebel  was  to  ftand 
profcrib'd,  and  put  out  of  Protedion.     But  a  Prince,  or 
one  that  hath  a  Sovereign  Power,    and  had  been  conten- 
j  ding  for  his  Right,  but  Succefs  not  crowning  his  hopes, 
j  occafion^d  his  flight,  hath  always  been  excepted  ;  to  de- 
\  liver  up  fuch,  is  even  againft  Nature  and  the  Majefty  of 
H  Power ;    and  therefore  it  is   very  remarkable  what  at- 
p  tempts  were  made  for  E.  4.,  H.  7.  nay  in  the  very  Treaty 



172  ^t  PjOteCttOn,  &c.         Book! 

of  Intercurfus  magnus  it  is  memorable  that  at  that  time  Per. 
kin  Warheck  was  contending  with  H.  7.  for  the  Crown  of 
Englmid  by  the  name  of  Richard  Duke  of  Tork^  youncrer 
Son  and  furviving  Heir  Male  of  Edward  the  Fourth.  My 
Lord  Bacon  does  take  a  particular  notice,  that  Perkin 
Warheck  in  that  very  Treaty  was  not  named  nor  contain. 
ed,  becaufe  he  was  no  Rebel,  but  one  that  contended  for 
the  Title.  Afterwards  when  Perkin  was  fled  into  Scotland^ 
and  there  received  by  the  Scottijh  King,  Henry  the  Se- 
venth  fent  to  have  Perkin  delivered  up,  and  it  was  one 
of  the  principal  Inducements  of  the  King  to  accept  of  a 
Peace  upon  that  condition,  giving  for  an  argument,  that 
Perkin  was  a  Reproach  to  all  Kings,  and  a  Perfon  not 
protected  by  the  Laws  of  Nations ;  but  the  Scotch  K 
peremptorily  denied  fo  to  do,  faying,  "That  he  [for 
fart)  was'  no  competent  Judge  of  Perkin' j  ^i//^,  but  that  be 
had  received  him  as  a  Suppliant^  protected  him  as  a  Perfon 
fled  for  refuge^  efpoufed  him  with  his  Kin/woman,  andaidd 
Lord  Bncon^s  him  with  Arms^  upon  the  belief  he  was  a  Prince^  andthtrtr 
Henry  ^t  ^^'  foyg  ^^  could  not  now  with  his  Honour  fo  unripe  and  (in  a 
JO .  -J  ,  y^^^  j  p.^^  ^  lyg  ^pr)yi  ^11  ^j^^j  j^Q  had  f aid  and  done  before^  aslo 

deliver  him  up  to  his  Enemies,  This  was  fo  peremptorily 
infilled  on  by  the  Scotch  King,  that  Henry  the  Sevenfh 
was  at  length  contented  to  wave  the  Demand,  and  condude 
a  Peace  without  that  Article  ;  notwithftanding  the  King 
of  Scotland  had  often  in  private  declared,  that  he  fufpeft- 
ed  Perkin  for  a  Counterfeit. 

XI.  Perfons  that  have  wronged  or  defrauded  Kings  of 

their  Revenue,  efpecially  in  England^  upon  Letters  of  Re- 

queft  to  thofe  Princes  whither  they  have  fled,   have  bep 

delivered  up.  ^,t 

Some  Florentine  Merchants  of  the  Society  of  the  Prl^^ 

haldi^  being  made  Colledtors  and  Receivers  of  the  King's 

Cuftoms  and  Rents  in  England^  TVales^  Ireland^  and  Gc.- 

coigne,  running  away  with  thofe  Monies,  together  with 

all  their  Eftates  and  Goods,    for  Rome,    the   King  fent 

Rott.  Roma     his  Letters  of  Requefl;  to  the  Pope,    defiring  that  they 

^«.  4.  E.  2.    might   be  arrefted,  and  their  Perfons  and  Goods  feiw 

ilf.  17.  Dor/o.  ^^^  ^gj^j.  (j^gj.  jQ  fatisfy  him  for  the  damages  he  and  his 

Subjefts  had  fuftained  by  them.,  promifing  not  to  proceed 

againft  them  to  the  lofs  of  their  Limbs  or  Lives.     Upon 

which  L-tters,  the  Pope  feized  on  their  Goods,  and  not 


l:flAP.xii.  0f  €onttihutiom  in  mat,  173 

jnff  after  the  King  writ  for  the  feizing  of  their  Perfons,  ^off,  Roma/i^. 
or  anfwering  of  other  frauds  and  injuries.  ^^^'  ^-  16. 

Xhe  like  was  done  for  one  Anthony  Faxons^   who  had    °^'^°' 
eceived  500  /.  of  the  King's  Monies,  and  running  away 
vith  it  to  Lorraine^  the  King  writ  to  the  fame  Duke^  de- 
iring  that  fearch  might  be  made,  and  his  Perfon  fcized  CZ/ya/ 8. 5. 2, 
ipon,  and  his  Goods  fecured  in  every  place  within  his  ^-31  l^orfi 
rerritories,  till  he  Ihould  fatisfy  the  faid  500  /.  ^''  ^'^'^ 

CHAP.     XII. 

U  Contn'btttt'on  pain  ^  piact^  ^mttv  to 
iotfi  ^vrnit^  in  Ulnv, 

[.  0/ force  ufedio  Neuters  nvhether 

W.  Of  Neuter Sf  their  duty  conftder  d 
in  reference  to  either  of  the  'war- 
ring Parties. 

III.  Cfonfideratiofis  general  touching 
the  famey  avd  the  chief  matters 
that  are  ohjeded  hy  thofe  that 
fcrupie  thereat. 

IV.  The  Cafe  ftated  generally  in  the 
quejiion  propounded  to  our  Saviour 
of  paying  tribute  to  Casfar. 

V.  In  the  payment  of  Contribution 
to  an  Enemy y  nvhat  is  neceffary  to 
be  dijiinguijhed  in  the  beginning  of 
a  War. 

VI.  Of  a  fecond  diflingidfhment 
dranjcn  out  of  the  firfiy  of  fuch 
payments y  <when  a  War  is  aBual- 
ly  formed. 

VII.  Where  a  man  pays ^  but  miflikes 
the  caufe^  ^whether  excufable,  the 

War  not  yet  aBually  formed  iti 

VIII.  Where  a  Country  is  fully  pof' 
fefiy  fwhether  payment  then  is 

IX.  0/  the  fate  of  thofe  that  li've 
on  Frontiers y  their  condition  confl- 
dered  in  reference  to  procure  their 
Peace  by  Contribution. 

X .  Of  inter diSion  by  him  to  Places 
from  ^oom  faith  is  onxiingy    Con- 
tribution    notvnthfianding     being 
paidy    <v:hether  the  fame  creates 
an  offence  in  them. 

XI.  Of  the  genuine  ConfiruBion  of 
fuch  interdidions  according  to  the 

true  intention  of  the  fame. 

XII.  Of  the  impunity  and  punifh' 
ment  that  fuch  innocent  Offenders 
may  be  fubjeSied  to,  in  cafe  of  be- 
ing quef  toned  for  the  contempt  bj 
their  right  Go'vemors. 

I.  T  T  is  manifeft  there  is  no  Right  of  War  over  Neuters 
JL  in  War  •,  yet  becaufe  by  occafion  of  the  War  many 
thin'gs  are  ufually  done  againft  fuch  (Borderers  efpecial- 
ly)  on  pretence  of  necelTity,  there  can  be  no  Excufe  for 
the  a6t,  unlefs  it  be  apparent  NecefTity,  and  that  the 
feme  ought  to  be  extreme^  for  then  it  may  give  a  Right 


174  ^f  €onttibmiom  in  mat,  Booki. 

over  what  belongs  to  another  Man  ;  for  in  fuch  cafe  if 
the  neceflity  be  manifeft:,  there  may  be  fuch  a  proportion 
exadled  as  the  neceflity  requires,  that  is,  if  the  Cuftody 
fuffices,  the  Ufe  of  the  thing  is  not  to  be  taken  ;  if  the 
Ufe,  not  the  Abufe,  be  neceflary,  yet  is  the  Price  of  the 
thing  to  be  reftored.  Mofes^  when  the  higheft  neceflity 
urged  him'  and  the  People  to  pafs  through  the  Land  of 
the  Idumeans^^  firft  he  faith,  he  would  pafs  along  the  hiA 
way^  and  not  divert  into  their  Corn-fields  or  Vineyards ;  tf 
he  had  need  hut  of  their  Water ^  he  would  pay  a  price  for  it, 
The  worthy  Captains,  both  Greek  and  Roman ^  have  done 
the  like  :  In  Xenophon  the  Greeks  with  Clearchus,  promife 
the  Perjians  to  march  away  without  any  damage  to  the 
Country,  and  if  they  might  have  neceflfaries  for  Money, 
they  would  take  nothing  by  force.     This  Virtue  is  often 

*  See  to  this   commended  in  *  Bclifarius  by  Procopiushxs  Companion 

purpofe  his     and  Witnefs  of  his  Adlions. 


Speech  to  his 

Soldiers  near  5/«^,  when  he  marched  into  ^r/c/^,  and  the  Narration  of  his  March 

thorough  Africk,  Vandal,  i . 

II.  And  as  the  Law  doth  preferve  the  Eftates  and  Ter- 
ritories of  fuch  Neuters,  or  thofe  that  abftain  from  War, 
fo  on  the  other  hand  fuch  ought  to  do  nothing  for  either 
Party,  but  efpecially  for  him  who  maintains  a  bad  Caufe, 
or  whereby  the  Motions  of  him  who  wageth  a  juft  War 
in  ay  be  retarded  ;    and  in  a  doubtful  Cafe  they  ought  to 
kxemplum       fhew  themfelves  equal  (as  v/e  have  mentioned  elfevvhere) 
r^obile  'vide      to  both  in  permitting  pafTage,  in  affording  Provifion  for 
cpudParw      |.|^g  Legions  or  Navies,  and  in  not  relieving  the  Befieged 

^"ucJideii  1  ^^  ^^  ^^^  ^^^y  ^f  ^^^  Athenians,  if  they  would  not  fide  wttb 
any  Party,  cither  to  prohibit  the  Corinthians  from  raifal 
Soldiers  out  of  Attica,  or  permit  them  to  do  the  like.  So  the 
Emperor  and  Confederate  Princes  of  the  Empire,  with  the 
Cantons  of  Switzerland  in  the  late  German  War,  and  fo  of 
the  King  of  England^  who  was  fo  careful  to  preferve  the 
Neutrality,  that  he  iffued  forth  his  Proclamations  to  pro 
hibit  all  Perfons,  of  what  Condition  foever,  to  become 
Soldiers  in  the  Service  of  any  of  the  warring  Princes.  It 
was  obje6led  by  the  Romans  agairifh  Philip  King  of  the 
Macedonians,  That  the  League  was  violated  bv  him  two 
ways,  both  becaufe  he  did  injuries  to  the  Fclloivs  of  the  Rornofi 


Chap-  XII.  ®f  €ollttihUtiom  iU  Wav.  175 

Peoph,  and  becaufe  he  ajjlfted  the  Enemy  with  Aids  and  Money. 

The  fame  things  are  urged  by  ^itus  ^intus  in  his  Confe- 

-ence  with  Nahis^  Yet  thou  fayeft,  /  have  not  violated  you ^ 

yiorP^^  Friend/hip  and  Society^    how  often  lliall  I  prove 

:he  contrary  ?    In  fhort,  wherein  is  Friendfhip  violated  ? 

By  thefe  two  things  efpecially  :    If  thou  haft  my  Friends  Procop.Goth. 

V  Enemies  :    if  thou  art  a  Friend  to  my  Enemies  :  he  is  i  • 

mhnd  an  Enemy  who  fupplieth  them  with  what  is  ufeful 

^or  the  War, 

III.  But  now  there  are  many  things  that  are  ufeful  for 
he  War  worthy  of  feme  confideration,  the  which  are  not 
b  accounted  at  this  day  by  the  Laws  of  Nations  ;    un- 
bftand  me,  That  I  call  the  Laws  of  Nations^  which  is 
t  this  day  univerfally  pra6lifed,  as  namely  the  fupplying 
ither  or  both  of  the  warring  Parties  with  Monies,    or 
hat  which  is  called  Contribution.     Now  if  the  Minds  of 
he  Subjeds  cannot  be  fatisfied  by  the  declaration  of  the 
'aufe,  it  will  certainly  be  the  OfRce  of  a  good  Prince  or  SH.  in  Verh, 
leneral  rather  to  impofe  upon  them  Contribution  than  i^ellump,  i. 
/lilitary  Service,  efpecially  when  that  Prince  or  General  ^.J^ 
ath  an  Army  fuflicient  to  profecute  his  Defigns,    the 
'hich  a  juft  Commander  may  ufe  as  God  doth  the  ready 
ervice  of  the  Devil. 

The  mod  excellent  Grotius  having  moil  incomparably 
•eated  on,  and  cleared  all  the  important  Objedicns  againft 
juft  War,  together  with  the  Incidents  of  the  fame  ;  yet 
lis  main  one  of  Contribution  or  paying  to  both  Armies, 
hether  lawful,  he  hath  not  touched  in  any  other  v/ords 
at  thefe,  ^.od  fub  tributo  utrique  parti  pra^ftando  fa5lum 
'u  in  Belgicc^  Germanico  bello  nuper  vidimus^  eft  que  id  con' 

Intaneum  mori  veteri  Indcrum  "f  :    and  fo  cites  a  faying  in  ^Grot.  dejun 
Hodorus  Siculus  *,    of  the  Peace  that  thofe  People  main-  ^dl.^acPads^ 
ined  in  their  Polleffions  by  reafon  of  fuch  Contributions.  /  '^'  ^"^^2!^* 
j|  ut  to  many  Perfons  this  Inflance,  without  further  fcru-  *  uh,  2. 
f  ny,  proves  infufficient  •,    for  there  are  many,  v^ ho  not 
ding  this  Liberty  in  their  Confciences,    unnecelllu-ily 
ife  rather  to  give  up  their  Bodies  to  reflraint^  and  to 
Andon  their  whole  means  of  Subfiftence  in  this  World, 
th  for  themfelves  and  their  Children,  (which  ought  not 
^'ndly  to  bedone,  unlefs  we  would  be  worfe  than  lyiftdels^  ii.% 
Paul  faith)  they  ground  their  Refolution  on  this  Reafon, 
^t  they  know  not  whether  the  Monies  they  give  may 


176  ^(  €ontvibittion^  in  zmv.   Booki 

not  fiirniili  to  the  Dcftruclion  of  many  Innocents^  and 
perhaps  thejuft  Magifcrate  ;  yea,  and  the  total  fubyer. 
fion  and  ruin  of  their  Country,  Liberty,  and  Religion; 
and  therefore  though  Men  give  and  beftow  their,  own 
where  they  pleafe,  yet  in  fuch  Cafes  they  may  not ;  there, 
fore  it  may  not  be  impertinent  to  examine  whether  tjk^fc 
be  neceffary  Scruples  in  themfelves,  and  fuch  as  admitof 
no  exception  of  Liberty,  or  whether  thofe  Scruples  be 
reafonable,  or  indeed  meer  fcandal. 

IV.  The  Scribes  and  Pharifees  fought  two  ways  toea- 
trap  Our  Saviour  ;  one  was  if  he  had  blafphemoufly 
taught  a  new  Religion,  and  a  new  God^  {viz.  himfelf) 
they  hoped  the  People  would  be  provoked  to  ftone  him 
Beut.xiii.  for  this,  according  to  the  Hebrew  Law  :  The  other  was, 
to  bring  him  within  the  compafsof  Treafon^  as  if  he  could 
not  lead  great  Multitudes  after  him  without  traiterous  de- 
figns  j  but  this  Gin  failed  too,  becaufe  the  Multitudes 
which  followed  him  were  always  ready  to  defend  him. 
However,  when  he  was  at  Jerufalem,  where  the  Romn 
Troops  and  Pr^tor  were,  they  thought  they  had  him 
fure,  by  propounding  thisSubje61:  to  him  : 

Is  it  lawful  to  pay  'Tribute  to  Csefar  ?  Which  v/as  as  mucli 
as  to  fay,  We  who  are  defcended  from  Abraham^  and  are 
the  peculiar  People,  to  whom  God  hath  given  the  large 
Privileges  of  the  Earth  at  home,  to  bathe  ourfelvcs  m 
Rivers  of  Milk  and  Honey,  to  have  full  Barns  and  mary 
Children;  yea,  that  GOD  himfelf  would  be  adored  ia 
no  other  place  of  the  World  but  at  this  our  Jeriifakm^i^^ 
that  abroad  we  fhould  triumph  over  the  Barbarous  andur- 
circumcifed  World  by  virtue  of  that  Militia^  which  he 
never  ordered  for  any  but  ourfelves  ;  how  are  we 
in  Duty  or  Confcience  to  fubmit  now  to  the  Ordinances 
the  Uncircumcifed  Romans  ?  Or  what  Right  can  he  havew 
exercife  fupreme  Jurifdidion  over  us,  the  privil^e 
Seed  of  KhvdL\i2im^  by  levying  of  Taxes  on  our  Eftatesan^ 
Lands,  which  GOD  himfelf  laid  out  for  us,  by  \^^'* 
means  the  Emperor  and  Senate  hold  this  very  Temple  r 
(lavery,  and  infult  over  our  very  Confciences  and  M' 
gion,  by  defiling  our  very  Sacrifices  with  the  mixtuicc: 
impure  Blood  ;  which  as  they  are  the  price  of  our  BWt 
and  a  Tribute  far  above  C^r's,  (payable  in  no  other  Pia« 
but  this  Temple,    which  GOD  himfelf  built)   io  oij 



ckap.  Xir.  s?f  €mttiMtibn^itt  m&v*  177 

Blood  ought  not  to  feem  too  dear  to  be  facrificed  for  tht 
Liberty  of  thefe  :  and  though  the  Roman  State  coUld  pre- 
tftnd,  yet  what  can  this  defar  pretend  ?  Every  man's  Con- 
fdence  knows  that  it  was  but  the  other  day  he  ufurpt  over 
the  Senate^  in  which  refides  the  true  Jurifdiclion  of  Rome  j 
and  if  that  were  otherwife,   yet  how  can  he  pretend  to  a 
Tide  unlefs  Poifon  be  a  Pedigree,  or  violent  Ufurpatioh 
a  juft  Eledion,  by  which  he  who  is  but  the  greateft  Thief 
in  the  World  would  now  pafs  for  the  mofh  Sovereign  and 
Leo^itimate  Prince  ?  How  then  are  we  in  Confcience  ob- 
lioed  to  pay  Tribute  to  this  C<efar  ?  Though  thofe  Law- 
yers thought  in  their  Confciences  that  they  were  not  to 
pay  it,  and  that  Our  Saviour  likewife,  as  a  Jeijv^  thought 
fotoo  j  yet  they  fuppofed  he  durfl:  not  fay  fo  mUch  in  the 
crowd  ;  nor  yet  deny  it  by  fnifdng  it  off  with  Silence,  left 
the  Roman  Officers  fhould  apprehtliid  him  :  But  when  Ouf 
Saviour  Ihewed  them  C^fafs  Fade  upon  the  Coin,  and 
bade  them  Render  to  Cafar  that  which  was  Ccefar^s,  and  td 
GOD  that  which  was  G  O  D's -,  His  Anfwer  ran  quite 
otherwife,  not  as  fome  would  have  it,  that  by  a  Subtilty* 
he  anfwered  not  to  the  Point  propofed,  for  then  the  fenfe 
of  the  whole  Text  would  found  very  ill  in  fuch  Terms,  viZi 
If  there  be  any  thing  due  to  C^far,  pay  him  it,  and  if  any 
thing  is  due  from  you  to  GOD,  then  pay  it  likewife  ; 
This  had  been  a  weakening  of  GOD's  Right  for  C^far^s, 
and  to  have  left  a  defperate  doubting  in  a  necefTity  :  'Tis 
beyond  all  cavil  that  Otir  Saviour*s  Opinion  was  pofitive  for  Matt»  xxii,- 
paying  of  Tribute  to  that  C^far,    becaufe  defa^o  he  did  ^o- 
pay  it  •,   and  the  plain  Reafon  of  it  appears  evidently  in 
this  his  Anfwer  :  C^far's  Face  was  upon  the  Coin,  that 
is  to  fay,  Ccffar  by  Conqueft  was  in  PofTeiTion  of  that 
Coin,  by  pofTeiTing  the  place  where  he  obliged  them  to 
take  it  *,  coining  of  Money  being  one  Prerogative  of  Sove-  Coke  3.  Injiitl 
raign  Power.  fot.  16,  17. 

V.  But  to  come  more  clofe  to  the  Queftidn,  whether 
Contribution  may  lawfully  be  paid:  Firft,  we  are  to 
make  a  Difference  betwixt  perferre  i^  inferre  helium  -,  the 
one  is  adive,  and  properly  at  the  beginning  of  a  War, 
and  in  a  place  where  yet  no  War  is,  and  where  its  Caufe 
<>nly,  and  not  its  Effects  can  be  confidered  ;  in  this  cafe 
every  thing  ought  to  be  very  clear  for  Warrant  of  a 
Man's  Confcience,  becaufe  of  the  Calamities  which  he 

M  helps 


lyS  jfiDf  Cotttrtijatton^  tn  52!atr*  Booki. 

helps  to  introduce,  and  is  in  fome  manner  the  Author  of: 
the  other  is  palTive,  and  there  v/here  War,  or  the  Power 
of  War  is  adtually  Ibrmed,  which  is  the  Cafe  of  this 

VI.  Secondly,    we    are   to  tiiftinguifh  betwixt  that  I 
which  cannot  be  had,    nor  the  Value  of  it,   unlefs  tve 
actually  give  it,  and  that  which  may  be  taken  by  the  Law 
of  War  whether  we  contribute  or  no. 

VII.  Moft  certain  it  is,  though  a  War  be  not  y^t 
actually  formed  in  a  place,  yet  a  fcrupling  Confcienc^, 
which  likes  not  the  Caufe,  may  be  excufed  in  contributirtg 
to  it  in  this  one  Cafe,  viz.  If  fome  number  of  Men,  able 
to  take  what  they  afl<.,  demand  (with  an  armed  powd-j 
the  payment  of  a  certain  fum  to  be  employed  in  War, 
then  in  fuch  a  cafe,  the  Man,  whom  we  fuppofe,  may 
pay  it  as  a  Ranfom  for  Im  Life,  or  give  it  as  a  Man  doth 

4  H,  4.  2.  his  Purfe,  when  he  is  iurprifed  in  the  Highway,  becaofe 
to  this  Man  it  is  as  much  as  if  the  whole  Country  victe 
Procopius  in  pofTelTed  with  an  armed  Power.  So  feveral  Dutchies  and 
the  third  of  Seigfiiories  dependent  on  the  Empire^  did  in  the  War 
Goth.oiTotilas  between  them  and  the  Crov/n  of  France^    pay  Contri- 

faith,  /^gricolis 

interim  per  omnem  Italiamnihil  mali  intuUt  %  fed  jujffii  eos  itat  ut  foliti  erant^  term 
perpetuo  fecuros  colerCy  modo  ut  ipfi  Tributa  perferrent  :  This,  faith  Caffiodore,  is  the 
greateft  Praife.  12.  15. 

But  if  the  Perfon  or  Country  be  not  for  the  time  in  full 
PofTeiTion  of  him  whofe  Caufe  he  fcruples  at,  and  that  he 
or  they  have  not  a  probable  fear  of  extreme  danger,  nor 
as  probable  afifurance,  that  without  his  help  the  thing  de- 
manded nor  its  value  can  be  taken  from  him  or  theiti, 
then  there  is  litde  Excufe  remains  for  the  Ad,  becaufe 
the  very  Ad  (which  his  Confcience  diflikes)  participates 
more  of  Adion  than  of  Paffion. 

VIII.  But  where  a  Man  or  City  is  fully  pofTefTd  by 
an  invading  Power  fbe  the  fame  juft  or  unjuft)  from 
whom  he  or  they  cannot  fly,  nor  remove  their  Subftance, 
moft  certain  the  payment  of  Contribution  is  no  gift,  any 
more  than  he  (as  above)  who  with  his  own  Hands  being 
kt  upon  by  Pirates  or  Robbers,  puts  his  Purfe  into  their 
Hands  j  for  the  Laws  calls  not  that  a  Gift,  nor  excufcs 


Chap. xii.  mtontvibmiom in m&v.  179 

'  tfe  Party  from  taking  it  :    And  altho'  the  Parties  may 
employ  the  fame  to  the  DeftruClion  perhaps  ot  Innocents, 
and  the  like  j  yet  that  is  an  Adion  out  of  their  Power 
that  give,  as  far  as  Winds  and  Tempefts  are^  to  which  44  ^-  3-  H* 
;wo,    as  we  contribute  nothing,   fo  we  cannot  be  ^c^^"  r^  ^ '/'/?• 
pulous  in  our  Confciences  concerning  their  bad  Eifeds  ^^J  ^g'^  "-'''* 
nor  is  the  fame  repugnant  to  the  Canon   Law,  (which 
teaches  us  humanity,  and  the  imitation  of  all  their  virtues)  C.  2  deTrevg. 
and  therefore  Perfons,    whofe  Liv(.^s  are  innocent    and  ^  ^^^^-  ^^'* 
harmlefs,  ought  not  to  be  fubjeded  to  danger  or  plunder,    ^^""^^^ 
which  hardly  can   be  avoided  without  Contribution  or 

-^i^., Again,  thofe  that  live  on  Frontiers,  whofe  coridi- The qmet  of 
tion  is  more  tickliih  and  deplorable,  becaufe  they  are  not  ^^^  World 
fully  pofleit  nor  taken  mto  the  Lme  or  either  Party,  thele  j^^d  without 
live  as  it  were  in  the  Suburbs  of  a  Kingdom,    and  enjoy  Arms,  no 
not  the  Security  -or  Privileges  of  others,  yet  fuch  Per-  Arms  with- 
fons  may  lawfully  contribute  to  both  y    for  though  they  p^^^^^^^^^^P^. 
fee  but  partly  pofleft  by  one,  and  partly  by  the  other,  in  wltlioutCon^ 
refped  of  their  fudden  abandoning  them,    yet  both  Par-  tribution. 
ties  have  the  Power  of  dellroying  them  wholly  ;    where-  ^'^«^-  Hiji,  '^, 

'fore  thofe  former  Reafons  which  juftify  thofe  fully  pof- 
feft,  do  alfo  acquit  the  Payments  of  thefe  ;  for  their  con^ 
dition  here  is  more  calamitous,  feeing  they  are  really  but 
Tenants  at  Will,  expofed  to  a  perpetual  Alarm,  and  that 
both  Parties  wound  one  the   other  only  through  their 
fides,  as  thofe  this  day  that  are  fituate  between  Francs  and 
Germany  \   for  being  perhaps   Neuters  in  the  War,  they 
afe  in  that  cafe  by  the  Law  of- Arms  to  fhew  themfeives  Exmpkmm' 
^  to  both,   in  permitting  of  PafTage,    in  affording  ^^^J^fj^ff^ 
Provifions  for  the  Armies,  and  in  not  relieving  the  Be- g''^^^^.^/^')^/ 
fieged.  c.  17. 

X.  Nor  can  the  Interdiction  of  him  to  whom  fuch  owe 
Faith  and  Obedience,  any  ways  create  the  fame  an  Of- 
f'tte,  fince  the  declared  W^ills  of  our  Governors  cannot 
niake.  all  thofe  of  our  Ads  Sins,  when  we  obey  or  fubmit 

pnycdus  of  the  Pov/er  of  their  Government  ;    and  by  the  Gfoi.  dejufi 
Laws  of  War,  they  v/ho  have  overcome,  fhould  govern  ^f/^» '^^ -^^"'^ 
thofe  whom  they 'have  overcome;  and   therefore  what- ^  3-^-M  <«• 

M2  foever^-*^*^^- 

i8q  ^t  €ontnhutiom  in  tmv*  BookI. 

foever  is  exadled  by  the  Conquerors,  may  juftly  be  paid 
by  the  Conquered. 

And  fince  Princes  by  their  Commands  cannot  change 
the  nature  of  human  Condition,  which  is  fubjedt  naturally 
to  thofe  fore- mentioned  Changes,  it  would  feem  exceed- 
Jiirehoccve-  ing  hard  to  oblige  us  to  almoil  moral  ImpolTibilities  \  and 
7iitut  qmd  though  thofc  Political  Commands'  were  as  Laws,  yet 
^te'}m  ct-poris  ^-^^ubtlefs  they  ought  not  to  be  obliging,  but  according  to, 
fuUure  fldjTe  th^  Legiflative  Rule,  which  is  cum  fenfu  humane  mbecit- 
^exipmetur.  litatis^  this  is  that  which  is  called  the  prefumed  Will 
*  Leg.  ut  'Vim.  *  of  a  Governor,  or  the  Mind  of  a  Law :  for  in  extreiSJ 
p.  dejujl.  ^  necefTity  it  is  to  be  prefumed,  that  both  their  Wills  prb- 
^"'''  ceeding  from  the  Rigour  of  what  they  have  declarec}; 

rather  than  by  holding  to  that  which  is  their  fuppofed 
Right,  introduce  certain  Miferies  and  Confufion  without 
receiving  any  Benefit  thereby  to  themfelves.  Nor  could 
they  of  Utrecht^  and  others  of  the  conquered  Cities  in 
Holland^  abandoned  afterwards  by  the  French^  and  entire- 
ly preferved  from  Deftrudlion,  be  condemned  by  their 
Confederates^  for  the  Sums  by  them  promifed  to  the  Ene- 
my for  the  Prefervation  of  the  fame. 
And  that  is  Neither  are  fiich  Commands  or  Inter diElians  without  their 

apparently  j-^^^jg  ^^^  profit^  though  they  he  not  pofttively  obeyed ;  for 
thTLaws^f  thereby  Governors  lliew  to  all  the  World,  that  they 
Leagues;  for  renounce  no  part  of  their  Right,  no,  though  it  be 
fach  being  there  where  they  cannot  exercife  any  part  of  their  juft 
made,  the       Power. 

fame  remains, 

although  the 

fame  King  or  his  Succeflbr  be  driven  out  of  his   Kingdom,  for  the  Right  of  the 

Kingdom  remains,   although  he  hath  loll  the  Pofleffion,     Grotius,  lib.  2.  cap,}]' 

XT,  Now  the  true  Intention  of  fuch  Commands  or  In- 
terdictions is,  that  the  Enemy  fhould  not  by  any  means 
be  afTifted  or  ftrengthened  *,  but  if  fuch  Prohibitions  fhould 
be  obeyed,  nay  at  fuch  a  time,  when  they  and  all  their 
fubftance  are  abfolutely  pofTeft  by  the  Enemy,  moft  cer- 
tain fuch  Commands  dafli  againft  themfelves,  and  the  one 
countermands  the  other  ;  for  if  they  refufe  to  fubmit  in 
fuch  a  cafe,  then  they  do  that  which  advantages  -their 
Enemies,  becaufe  at  that  time  they  will  take  all,  whereas 
in  Cafe  of  Submiflion  they  afk'but  a  part. 

^  ^  XII.  In 

Chap.  XIII.  ^t  t^e|5a&si  ^Uitavv  patt  i8  r 

XII.  In  all  Wars  there  are  always  fome,  by  whofe 
DifafFe^Ttions  Enemies  gain  more  than  by  their  Compli- 
ance, juft  as  Phyficians  do  by  Diflempers. 

And  although,  by  variety  of  Succefles,  the  juft  Gover- 
nor fhould  after   recover  that  place,    which  fo  fubmit- 
ted  to  the  Power  of  their  Enemies,   and  for  that  reafon 
fhould  punifh  thofe  that  were  pliable  to  extreme  Neceflity  -, 
yet  it  follows  not  upon  that,  that  they  who  fo  conformed, 
finned,  or  did  that  which  was  abfolutely  unlawful  ;  for 
we  well  know  that  reafon  of  State  often  calls  for  Sacrifi- 
ces where  there  is  no  fault  to  expiate  :  Oflradfm  and  Jea-  InRepuhlka 
loufy  may  make  away  thofe  who  are  known  to  deferve  moft :  ^^^^  f!,"'T-] 
but  in  ftnct  Right  (which  is  the  Term  of  this  Queftion)  ;^^;^^;./. 
the  juft  Governor  ought  to  look  upon  them   as  more 
Unfortunate  than  Faulty, 


£)f  ti}t  0ai)al  ^ilitarv  part 

I.  fhe  Advantage  that  Princes  hwue 
by  a  good  Commander, 

II.  The  Love  that  naturally  proceeds 
from  the  Mariners  to  thofe  that 
are  valiant  ojid generous. 

III.  Princes  in  prudence  ought  not 
3d!  l9  hjien    too   much    to   the    Com- 
plaints againjl  Commanders. 

IV.  Of  the  faults  generally  confid^er- 
ed  in  Soldiers  and  I^lariners, 

V.  Of  the  punifhments  that  gene- 
rally ijuait  on  fuch  Offenders. 

«^VI.  Of  Drunkenjtefs,  Sivearing,  and 
ether  fuch  fort  of  Impieties^  not 
to  he  fuffered  in  Fleets. 

VII.  Spies,  Uis  ianvful  to  ufe  them 
hy  the  Laivs  of  Nations,  hut  being 
deprehended,  are  to  fuffer  Death  ; 
and  hozv  they  are  to  he  dealt  uoith- 
al  by  the  Laivs  0/ England. 

yill.  //  is  not  lawful  for  a  Frie:id 
or  IJeuter  to  relieve  an  Enemy,  and 
^^rfansfo  offendin?,  how  pun'tfht. 

IX.  Ships  taken  as  Prize ^  the  Ship^ 
Papers  i  and  other  matters  concern' 
ing  the  fame,  are  to  he  prefer^ved, 

X.  Of  things  taken  and  acquired  in 
War  ;  ho^  the  Right  of  them  be- 
comes njefted  in  the  Captors,  and 
honx)  that  is  to  be  underP.ood  by  tk4[ 
Lavj  of  Arms. 

XI.  %fealthe  Cables  or  other  Fur- 
niiure  of  the  King  of  England's 
Ships,  ho'w  punijhable  at  this  day, 

XII.  Ships  fur rendred  or  woluntari^ 
ly  yielded,  hovj  to  be  dealt  <v:ith^ 
and  to  thofe  that  fhall  refifl,  if 
entred  by  force,  luheiher  quarter 
may  be  refufed. 

XIII.  Ships  of  War  gsneraP^ 
ought  not  to  be  yielded  j  but  if  en- 
tred or  difabled,  'whether  they 
may  not  accept  of  garter,  fiand- 
ing  nuiih  the  Oath  cc^llei  SagriV 
mentum  Milicare. 

M  3 

XIY.  ^- 


iDf  t^e  Batm  ^iliutt  pavt  Book  i. 

XIV,  0/  obeying  Oniers,  the  fame 
ought  funiluaV.y  to  he  foUo^ied  ; 
and  if  broken^  trough  (he  a^  fuc- 
Cteds  ivell,  nvhether  thejame  fub- 
je£ls  not  the  Aclor  to  punijhmeiit. 

Xy.  Of  the  Obligation  incumbent 
on  Commanders  and  Soldiers^  to 
hehat'e  thejnfehes  'valiantly^  and 
the  right  of  flaying  an  Enemy ^ 
ijohere  la-vcful. 

XVI.  Ships  hons)  obli^d  by  the  Latv 
of  Anm  to  the  Jf/Ifance  of  one 
another  ;  and  of  the  duty  of  thofe 
that  ha<ve  fleets  under  their  Con- 

"XVil.  An  "Enemy  beaten  ought  to  he 
furfued,  and  ko'vofarii  is  la'rtful 
to  flay  fiich  fifing  ivith  their  li'ves 
in  their  hands^  by  the  La^w  of 
Arms,  andhonjothe  reeking  fiQord 
ought  to  be  go'uerned. 

XVIII.  Perjons  exejnpted  from  the 
fword  by  the    Lazes  of  Nature^ 

Nations,  Ci'vil  and  Canon,  and 
by  the  Municipal  Lwvjs  of  feme 

XIX.  Mutinying  hc^M  ejieewed,  n-a- 
lued  and  punijhed  at  this  Day  ly 
the  praSiice  of  Armies,  and  by  the 
Lan.vs  of  England. 

XX.  Whether  it  be  lanxful  to  decoy 
the  Subje^s,  Soldiers,  or  Mart- 
Tiers  of  an  Ene?ny  to  forf&ke  his 
Prinze  or  General,  and  to  hrinv 
tf-ver  his  Men,  Ships  or  Arms,  ajxd 

nxihere  by  La<w  they  may  be  recei'v- 
ed;  and  hoi.v  fu<h  Defer ters  tna^ 
be  punijhed  by  the  Laavs  ofNationi 
and  of  Engiard. 

XXI.  Of  Seducers,  Meffage- carritn 
and  Decoyers  of  Soldiers,  hoiu  to 
he  handled  by  the  Laiu  of  Arms. 

XXir.  Of  thofe  that  fhall  difobty-^r 
fir  He  their  fuperior  Oncers,  hvoi 

XXII I.  Of  mutinying,  and  thoft 
that  flmll  atl  in  the  fame,  bonti 
punijhed,  thous^h  they  hwve  a  jufi 
Cavfe  of  Complaint. 

XXIV.  Of  the  Care  incumbent  om 
Commanders  and  Majiers  of  tht 
Great  Ships,   in  reference  to  thtir 

fafety,  and  the  punijhment  oftoit* 
ful  burning  and  defraying  them^  • 

XXV.  Of  the  general  Offences  at 
Sea,   honjo  funifljed. 

XXVI.  Court  Martials  hovoere^- 
ed,  and  luhat  Operation  theifi 
fudgmetits  hanje,  and  upon  ivhom. 

XXVII.  :.  Judges  and  Adwcatts, 
PoiJuer  in  reference  to  gi'ving  an 
Oath,  and  the  Admirai'j  Po'wer 
honjo  limited  in  the  punifhing  of 

XXVIII.  Of  maimed  Soldiers  and 
Mariners,  and  the  P ro^vifons  that 
the  Laavs  make  for  them  at  this 

XXIX.  0/ Triumphs. 

LAN  excellent  General  is  an  Evidence  of  the  Fortune ; 
XjL  ^f  2.  Prince^  and  the  Inflrumcnt  that  occafions^ 
the  Happinefs  of  a  Kingdom  ;  and  therefore  when  God':- 
rnakes  choice  of  a  Perfon  to  repair  the  Diforders  of  the ., 
World,  or  the  Good  of  a  particular  State,  then  is  his  Care.1- 
fhewed  in  the  furnifhing  him  with  necelTary  Principles- 
to  undertake  great  Matters  ;  the  Thoughts  are  put  in  his 
Soul  by  that  eternal  Commander  to  execute,    he  troubles 
and  confounds  his  Enemies,  and  leads  him  as  by  the  Hand, 
to  Vidlories  and  Triumphs :  And  one  of  the  greateft  Ex- 
pedients whereof  he  ferves  himfelf  for  this  Purpofc,  is  iQ^^ 
raife  untg  him  excellent  Men,  both  in  Courage  and  Con- 



.  Chap.  XIIL  iS>ttf)t  ^ai)Vl S&iUtaVV  patt.  iSj 

I  duft,  to  whom  he  communicates  his  Care,  and  who  help 
*ihim  to  bear  the  Weight  of  Affairs.     Alexander  had  never 
l!  conquered  4/^a,  or  made  the  Indies  to  tremble,  but  for 
1  Epheftioft,  Parmenio^  and  Clilus  ;  defar  gained  many  a 
I  Battle  by  his  Lieutenants  ;    and  the  faireft  Empire  of  the 
k  World,  which  Ambition  and  the  Evil  of  the  Times  had 
f  divided  into  three  Parts,  was  reduced  under  the  Dominion 
of  Auguftus  by  the  Valour  of  Agrippa  \    Juftinian  trium- 
phed over  Perjtay  and  deftroyed  the  Vandals  .in  Africa^ 
and  the  Goths  in  Italy  by  the  Aid  o^Belifarius  and  Narfes  : 
And  it  is  moft  certain,  that  Noble  Commanders  are  the 
Glory  of  their  Princes^  and  Happinefs  of  the  People  ;  oa 
the. other  Hand,  Bafe,  Cowardly  and  Treacherous  Ge- 
nerals are  the  Shame  of  the  one,  and  the  Defpair  of  the  other. 

II.  Plence  it  is,  that  Soldiers  and  Mariners  draw  their 
Liftes  of  Love  even  to  •  the  Mouths  of  Cannons  with  a 
good  General,  but  Mutiny  and  Hate  to  the  main  Yard 
end  againft  one  that  is  Bad  ;  for  to  obey  them  who 
are  not   their  Soveraigns    when    they   do    them  Hurt, 

when  they  infult  and  are  cruel  in  cold  Blood,  and  Bafe,  ' 

Cowardly  or  Treacherous  in  Battle,    is  a  fad  Necefllty 

for  them,  and  a  hard  Eflfay  of  Patience  ;  yet  mufl  they 

be  obeyed,  and  the  Soldiers  and  Mariners  mufb  not  rebel 

or  repine,  but  fubmit  till  their  Soveraign  redrefles  their 


III.  Again,  Princes  ought  not  to  liften  too  much  to  the 
mutinous  Demands  of  the  Crew^    or  any  others  whofe 
Ambition  watches  their  Ruin,  whereby  to  conceive  An- 
ger again fl:  their  Commanders  •,   for  it  is  eafier  to  purge  out 
the  Choler  and  Difcontent  that  is  got  under  the  Hatches, 
than  to  provide  Commanders  of  Condu^,   Courage,    and 
Faithfulnefs  to  govern  their  Expeditions.     Belifarius,  that 
moft  excellent  Commander,  who  had  no  other  Crime  than 
his  Reputation^   and  was  not  culpable,   but  that  he  was 
Powerful,  having  conquered  Perfta^  fubdued  Africa^  hum-  ProcopimEiJl. 
bled  the  Goths  in  Italy,  led  Kings  in  Triumph,  and  made  ^^''^^^v^^^/'' 
appear  to  Confiantirople  fomewhat  of  Old  Rome  ;  an  Idea   ^   ^  ^-'^^"'  ^ 
of  the  antient  Splendor  of  that  proud    Republick  ;    af- 
ter all  his  eminent  Services,  this  great  Perfon   is  aban-  FUe  Sir  irW- 
doned  to  Envy:  A  Sufpicion,  ill  grounded,  deftroys  the  ^^^.  ^^^-^^^^'s 
Value  of  fo  many  Services  -,  and  a  fimpk  J ealoufy  cf  State,  ^"^g^"'^'^^* 
Wipes  them  out;  of  the  Memory  of  his  Prince  :  but  he  ^,/^y.  \'y^s. 

M  4,  refts 


1 84  SD(  tliei^afial  Sl^iUtatt  pSitt     Book  t 

The  Ingrati-  refts  not  there,  for  the  Demeanor  had  been  too  gentle 
been  mew^n^'^  if  Cruelty  had  not'  been  added  to  Ingratitude  -,  they 
by  Princes  to  ^^P^ive  him  of  all  his  Honours  -,  tliey  rob  him  of  all  his 
many  Brave  Fortune  ;  they  take  from  him  the  life  of  the  Day  and 
and  Noble  Light,  ibey  put  out  his  Eyes^  and  reduce  him  to  the  Com- 
Co"^'^tnde"t  P^^^  ^^  Rogues,  and  the  miferable  Belifarius  demands  a 
there  particu'  Charity  ;  even  that  Belifarius  the  chiefeft  General  of  his 
larly  enume-  Age,  and  the  greateji  Ornament  of  the  Empire^  who  after 
rate4.  fo  many  Vi6lories  and  Conquefts,  accompanied 

high  and  clear  a  Virtue,  and  in  the  midft  of  Chriftendoniy 
was  reduced  to  fo  abjed:  and  low  a  Mifery. 
.,;Nor  was  this  cruel  and  hafty  reckoning  of  Jw/zW^wi  let 
flip  without  a  cruel  Payment  ;  for  Narfes^  who  was  as 
>vell  a  Succeflbr  in  Merit  as  in  Authority  to  Belifarius, 
having  notice  of  a  Difdain,  conceived  likewife  againft 
him  upon  a  fingle  Complaint,  refolved  not  to  txpofe 
himfelf  as  a  Sacrifice  to  their  Malice ;  and  therefore 
thinking  it  better  to  fhake  off  the  yoke,  than  flay  to  be 
ppprefTed,  foon  fpoiled  the  Affairs  of  Juflinian^  for  the 
Qoths  revolted,  and  Fortune  would  not  forbear  to  be  of 
the  Party  which  Narfes  followed,  nor  to  find  the  Barha^ 
rian  where  fo  brave  a  Captain  was  engaged.  Therefore 
not  one  or  many  Faults  are  to  be  liftened  to  againft 
Commanders,  but  patiently  heard  and  redreffed,  not  to 
cjifgrace  or  lofe  them  ;  for  fuch  having  committed  a 
Fault,  yet  being  admonifhed  by  love,  may  endeavour  by 
future  Services  to  make  recom pence  by  fome  noble  Ex- 
ploit ;  but  difgraced,  become  Inftruments  often  of  Danger 
and  Ruin  to  their  Superiors. 

IV.  Soldiers  and  Mariners  Faults  are  either  proper  to 
^hemfelves,  or  common  with  others. 

Thofe  are  common  with  others  which  other  Men  fall 
into,  and  are  corrected  with  like  ordinary  Proceedings  as 
pther  Crimes  of  like  Nature,  as  Manflaughter,  Theft, 
Adultery,  and  fuch  like. 

Thofe  are  proper  which  do  purely  appertain  to  the 
.   „        .;.,  iV^^':;^/AZ////jryparr,  and  are  punifhed  by  fome  unufualor 

Decajhenftfe'  extraordinary  Punilhment  :  As  are  thefe  •,  Not  to  appear 
txilia,  {5  C.  ebr  at  the  over-muflers  or  calling  over  the  Ship  ;  to  ferve  un- 
^m  /;/.  /.  12.  der  him  he  ought  not  to  ferve  ;  to  vage  or  wander  long 
C.  (ieercgatio-  f^^^  ^^  Ship-board,  altho'  he  returned  of  his  own  accord; 
anrianakfjCat  ^^  iQuai^e  his  Fleer,   Squadron,  Ship,   Captain,  toifl' 

n;ejl  Militari.  IHailder, 

«ckAP.  XIII.  m  t^e  iUabai  ^ilitavv  patt  185 

%  niander,  or  Officer  •,  to  leave  his  (landing  to  fly  over  to' 
'the  Enemy;  to  betray  the  Fleet,  Squadron,  or  Ship  ;  to 
Jll  be  difobedient  to  his  luperior  Officers ;  to  lofe  or  fell  his 
5  Arras,  or  to  fteal  another  Man's  ;  to  be  negligent  in  his 
i  Oficer's  Command,  or  in  his  Watch  •,  to  make  a  Mutiny  ; 
I  to  fly  firft  out  of  the  Battle,  and  the  like,  which  are 
i  very  frequently  fet  forth  in  the  Titles  of  the  Digefl  and 
Code  of  Military  Affairs,  and  other  like  Titles  which  ac- 
company them. 

jirrian,  who.  wrote  the  Life  of  Alexander  the  Greats 
obferves,  Every  thing  is  counted  an  Offence  in  a  Soldier^ 
which  is  done  contrary  to  the  common  Difcipline^  as  to  be 
negiedlful,  ftubborn,  and  flothfuh 

V.  The  Punifhment  wherewith  Soldiers  and  Mariners 
are  corredled,  are  thofe  corporal  Punifhments,  or  a  pecu- 
niary Mulk  or  Injundion  of  fome  Service  to  be  done,  or 
a  motion  and  removing  out  of  their  Places,  and  fending 
them  away  with  fhame.  ^: 

'  By  capital  Punifhment  is  underflood  for  the  mod 
part  Death,  or  at  leaft  beating  with  Cat  with  Nine  'Tails, 
as  they  commonly  term  it,  Ducking,  Wooden- HorfCy  Gaunt- 
let, znd  hch  like,  unlefs  happily  it  be  pardoned,  either 
for  the  unfkilfulnefs  of  the  Mariner  or  Soldier,  or  the 
Mutiny  of  the  Crew  or  Company,  being  thereto  drawn  by 
Wine,  Wantonnefs,  or  for  the  Commiferation  or  Pity  of 
the  Wife  and  Children  of  the  Party  offending-,  all  which 
is  left  to  the  Difcretion  of  the  Lord  Admiral^  and  others 
the  Supreme  Commanders  or  Captains. 

VI.  It  is  neceffary  that  in  Armies  and  Fleets,  all 
manner  of  Impiety  fhould  be  prohibited,  efpecially 
that  of  Swearing  and  Curfing  ;  for  fuch  Sins  are  fo 
foolifh,  that  they  unawares  trip  Men  into  Damnation, 
rendring  Men  worfe  than  Beafts,  by  how  much  the  more 
they  court  that  Vanity  of  Sin,  without  any  of  the  appen- 
dent  Allurements  which  other  vitious  Adlions  are  accom- 
panied with,  the  fame  in  the  end  teaching  Men  to  difavow 
GOD  in  their  difcourfe  and  adions,  by  their  intemperate 
and  inconfiderate  invoking  him  in  their  Oaths.  Againftfuchj 
cs  alfo  againft  thofe  that  Jhall  give  themfehes  up  to  Curfing^ 
^ecrations,  Brunkennefs,  Uncleannefsy  or  other  fcandalous  i^Car.2. 
ifi^ions  in  Derogation  of  God*s  Honour,  and  corruption  of  Good  ^^^  9^  Art.z. 

Manners  -,  Fines  and  Imprifonment^  or  fuch  other  Punifbfnent 


1 86  £>(  tf^t  i^abai  flptittat^  part  Book  i. 

may  he  hjfli^ed  on  them  by  a  Court  Martial^  which  is  qov 
By  Order  of  reduced  to  the  Forfeiture  of  one  day's  Pay  •,  but  for  Drunk. 
his  Royal  ennefs,  the  fame  extends  not  to  Commanders,  or  other 
Dlk^e"ofrc^;i  Commiffion  and  Warrant  Officers,  for  they  upon  Convic. 
1666.  *  tion  before  the  Admiral^    ftiall  be  rendered  uncapable  of 

their  Command. 
Artie.  I.  And  a  Lyar  cnnvifled  on  Ship-board,  fhall  be  hoiftcd 

upon  the  main  Stay  with  four  Braces,  having  a  Brooir. 
'  and  Shovel  tied  to  his  Back,  where  he  ftiall  continue  an 
Hour,  every  Ma:  crying,  A  Lyar^  A  Lyar^  and  a  Week 
following,  he  fti.  11  clean  the  Ship's  Head  and  Sides  witt 
out  board,  according  to  the  antient  practice  of  the  Navy  i 
if  he  receives  greater  Wages  than  for  an  able  Sea- man- 
then  half  a  day's  Pay. 

VII.  By  the  Laws  of  Nations.,  Spies  may  be  fent  tofu(. 

vey  the  Enemy's  Force,  Fleet,  Station,  or  Squadron,  anS 

Lih.  2.  f.  3.   rnake  difcovery  of  whatfoever  may  give  advantage  to  the 

Corn'ifsica  ^^^^^ns  fending  :  So  Mofes  and  Jo/hua  did  into  the  Holj 

rii^'puL  ^^^  Land,     On  the  other  hand  being  deprehended,  they  are 

to  be  put  to  death,    as  Appian  faith.     Bat  whether  it  be 

lawful  to  make  Spies  of  the  Subjeds  of  that  Prince  wA 

whom  the  War  is  begun,  hath  been  fome  doubt :  It  is  not 

lawful  for  a  Subjed  to  kill  his  King,    nor  to  yield  up  hi$ 

Ships  of  War  without  publick  Council,    nor  to  fpoil  hjs 

fellow  Citizens,  to  thefe  things  it  is  not  lawful  to  tetnpt 

a  Subje<^  that  remains  fuch  -,  nor  may  any  reply.  That  to 

him  who  impelleth  fuch  a  Man  to  a  wicked  A(5l,  that  Aft, 

^  as  namely  the  betraying  of  his  Enemy,  is  lawful  •,  no  body 

doubts,  he  may  indeed  do  it,    but  not  in  that  mannei'; 

but  yet  if  a  Subjedl  will  voluntarily  defert  his  Prince  and 

Country,  i.  e.  fo  enter  into  a  Correfpondency  with  the 

Enemy  of  it,  without  any  impulfe  but  his  own  covetous 

leg.  tramfug,  qj.  j-evengcful  Mind,  furely  it  cannot  be  unlawful  for  the 

rum  ^Dom   ^^'  ^^^^^  ^^  receive  him.     IVe  receive  a  Fugitive  by  the  Law 

of  IVary  faith  Celfus.,  that  is,  it  is  not  againft  the  Law  of 

*  As  was  in  War  to  admit  fuch,  even  a  Traitor,    who  having  defertd 

^^^,  ^^p^^j.      the  Enemy'* s  part.,  ele^eih  ours  \  however  fuch  Perfons  ought 

the^^/eW  "^^  ^^  ^^  rendered,    unlefs  exprefsly  ftipulated  *,   but 

Jniiochui,  pI  ought  to  be  pardoned.     By  the  Laws  of  England,  if  an;j 

iyb.  in  excerpt.  Officer.,  Soldier  or  Mariner.,    in  a5fual  Service.,  and  in  the 

^T^'tiV  .  ^^J  ^^y  ^^  ^^^  Majefly^s  Fleets  or  any  other  Perfon  in  thefim^y 

Prote^7,^Ue;;t'  Jhall givey  heldy  cr  entertain  any  Intelligence  to  Qr  withi^n^ 

TICK  decet.  ^%'^ 


jHAP.  XIII.  M  tl)e  i^atar  3®tiitar^  part.  187 

iji/p-,  Prince  or  State^  being  Enemy  to^  or  any  Perfon  in  Stat.i^.  Car- 

cllion  againfi  his   Majefty^    bis  Heirs  and  Succejfors,  ^:  ^^P'  9-  -^'*- 

boui  Leave  or  Authority  from  the  King,  Admiral,  Vice- 

liiiral,  or  Officers  in  Chief  of  any  Squadron,   they  are  to 

■d.  ^er  Death.  Now  the  bare  receipt  of  a  Letter  or  Meffage 

(•m  an  Enemy,  will  not  make  a  Man  fubjetSt  to  the  Pe- 

■^  ty  of  this  Article  ;  and  therefore  the  fubfequent  Article 

lains  the  precedent,    in  which  it  is  provided.  Thai  if 

inferior  Officer,   Mariner,    or  Soldier,  /hall  receive  any 

1 1  iter  or  Mejfage  from  any  King,  Foreign  Prince,  State, 

^j  Potentate,  being  an  Enemy,    or  on  their  behalf  -,    and  if 

jj  b  Perfon  doth  not  reveal  the  fame  within   Twelve  Hours, 

ji  ving  opportunity  fo  to  do,  and  acquaint  his  Superior  Com-  ^' 

rJer  with  it,  fuch  Perfon  is  to  fuffer  Death  ;  fo  likewife, 

fiich  Superior  Officer  or  Mariner  being  acquainted  there ^ 

b  by  an  Inferior  Officer,    Mariner,   or  other ;  or  fuch 

erior  Officer,  Commandor  or  Mariner,  in  his  own  Per- 

,  receiving  a  Letter  or  Meffage  from  any  fuch  Enemy  or 

•el,  and' fh all  not  in  convenient  time  reveal  the  fame  to 

1?  Addiiral,  Vice- Admiral  or  Commander  of  the  Squadron^ 
Jhall  fuffer  the  like  pain  of  Death,  or  fuch  Punifloment 
a  Court  Martial  fhall  infliEl.     Now  Spies  are  put  to 
eath  fometimes  juftly   by  thofe  that  manifeftly  have  a 
(I  caufe  of  Warring    by  others,  by  that  licence  which 
e  Law  of  War  granteth  -,    nor  ought  any  Perfon  to  be 
oved  with  this,    that  fuch  being  taken,    are  punifhed 
ith  Death  \  for  that  proceeds  not  from  their  having  of- 
ndecj  againfi:  the  Law  of  Nations,  but  from  this,  that 
}  th^  fame^'Law  every  thing  is  lawful  againft  an  Enemy  ;  Ad  teg.  Com. 
'id  every  one,    as  it  is  for  his  own  Protit,    determineth  deSkariispun. 
-aer  more  rigoroufly  or  gently  :    But  that  Spies  are  both  facU.  Hijl.  5. 
[  wful  and  pradicable,  there  is  no  Queilion  ;  for  at  this 
'".^  ly  by  the  general  Inflruflions  of  Fleets,  there  are  al- 
'  ''^^ys  out  of  each  Squadron  fome  Frigates  or  Ships  ap- 
ated  to  make  difcovery  of  the  Enemy  ;  and  upon  fight 
^'>  make  Sail,  and  to  Hand  with  them,'  in  order  to  take 
.  ^^nizance  of  their  Force,  as  well  Ships  of  War  as  Fire^ 
^  raps,  and  in  what  pofture  they  lay  ;  which  being  done, 
_^/'>je  deleting  Frigates  are  to  fpeak  together ^  and  to  conclude 
t  the  Report  they  are  to  give,  which  done,    they  return  to 
^^^^  ,W>c^ive  Squadrons ',  fuch  Ships  in  fuch  Service  are 
ot  oDli^ed  to  fight,  efpecialJy  if  the  Enemies  Force  exceed 



iS  8  £>f  t^e  fHahai  ^ilitavv  part  Book  i 

them  in  number,    or  unlels  they  ihall  have  an  appartr; 


BartoL  Leg,        VIII.  Again,  it  is  not  lawful  for  any,  be  he  Friend o 

^^^y^-^'r^'  ^^^^^^5  ^o  relieve  an  Enemy,  much  lefs  for  a  Soldier  o: 

/ico/fs  '^^  ^'  M^^ii^^^  i^  P^y?  tofupply  him  that  confpires  the  deftru^lk, 

of  my  Country y  is  a  liberality  not  to  be  allowed  of :  He  is  to 

Procopius         be  accounted  an  Enemy  that  fupplies  the  Enemy  with 

Got^.  I .  NecefTaries  for  the  War  ;    and  therefore  by  the  Laws  of 

War  is  fo  to  be  efteemed  ;  and  by  the  Laws  of  En^kni^ 

Stat.  1 3 .  Car,  jj  ^^^  Perfon  in  the  Fleet  relieve  an  Enemy  or  Rebel  in  t'm 

iic. /,         ^  of  War ^  ivith  Money ^  Vi5iiials^  Powder^  Shot ^  Arms y  An. 

munition y  or  any  other  Supplies  whatfoever^  dire5fly  or  inii- 

rcElly^  he  fhallfuffer  Death, 

^''^^^'  ^*  IX.  Ships  being  ajjaulted  and  taken  as  prize,  all  :k 

Papers,  Charter-parties,  Bills  of  Lading,  Pafs-portSyini 

other  Writings  whatfoever  that  JJoall  be  taken,  feizd,  cr 

found  aboard,  are  to  be  duly  preferved,  and  not  torn  or  nm 

away  -,  but  the  very  Originals  are  to  be  fent  up  entirely  ani 

without  fraud  to  the  Court  of  Admiralty^  or  to  the  Conim- 

der  appoijited  for  that  purpofe,  in  order  to  the  Condemnatm 

of  the  Prize,  upon  pain  of  the  Captors  lofing  their  Shan  in 

the  Prize,    and  alfo  fubje5l  to  fuch  other  Punifloment  (H  i 

Court  Martial  fh all  think  fit, 

X.  The  Right  of  taking  of  Spoil  was  approved  of  God, 
within  thofe   natural 'Bounds  v/hich   have  been  alreadv 
inentioned,  as  is  further  evinced  by  the  Appointment  ot 
God  in  his  Law  concerning  the  Acquifition  of  Empire 
Deut.  XX.  14.  over  the  conquered,    after  refufal  of  Peace,  All  tk  j^i 
thereof  fhalt  thou  take  unto  thy f elf,  and  thou  fhall  eat  the  ffit-' 
of  thine  Enemies,  which  the  LO  RB  thy  GOB  batb^m 
thee.     Hence  it  is,    that  things  taken  from  the  Enemy. 
prefently  become  theirs  that  take  them  by  the  Lawc 
Nations,   and  fuch  Acquifition  is  called  Natural,  fornc 
leg.Nat.^.uit,  any  caufe,  but  the  naked  fa6l  is  confidered  ;  And  thence 
dH'^IT^''^  Right  arifeth;    for  as  the  Pominion  of  things  bega.i 
rerum  Deo,      ^^"^  Natural  PoiTeflion,  and  fome  print  of  the  fame  re- 
mains in  the  things  taken  in  the  Land,  the  Sea,  and  th; 
^aarmts      Air,  fo  likcwife  of  things  taken  in  War-,  all  whidin- 
tr^it^fbem  ^^"^^y  become  theirs  that  firft  become  Captors :  and  fe 
jure  nlndimil-  ^^  Enemy  are  judged  to  be  taken  away  thofe  things  alio 
tenda,  which  are  taken  away  from  the  Subjeds  of  the  Eneiny' 

But  though  this  gives  a  Right  to  -;he  Captors,  yet  twf 

■        ■         ■         *       "^  m 


a  132  underftood  to  the  Soveraign,  or  to  the  State  that 
!"  [oyed  them,  and  not  co  themfelves  •,  but  if  they  have 
"^fmareof  the  Prize,  the  fame  proceeds  by  the  conde- 
^{\Sh  or  grant  of  the  Soveraign,    which  may  be  en- 
fed  or  abriged  as  occafion  ferves  ;    and  therefore  by 
K^Laws  of  Englmdy  Ships  of  War  having  taken  a  Prize ^  Artie.  7. 
^Goods  and  all  manner  of  Lading  is  to  he  preferve'd^  till  Ad- 
{iiication  jhall  pafs  %  but  that  is  to  be  underftood,  where 
the  Ship  voluntarily  yields  :    but  Ships  whom  they  fhall 
afTiult,  and  take  in  fight  as  Prize,  the  pillage  of  all  man- 
ner of  Goods  and  Merchandizes  (other  than  Arms,  Am- 
munition, Tackle,  Furnitures  or  Stores  of  fuch  Ships)  as 
(hall  be  found  by  the  Captors,  upon  or  above  the  Gun-Beck  By  the  dona- 
j  fjj^  Ship,   become  theirs  ;    but  this  is  to  be  underftood  tion  of  his 
ihere  fuch  Prize  may  lawfully  be  pofteft  ;   for  there  are  ^'^'^''J^J^y' 
times  when  fuch  are  not  to  be  meddled  with  ;  and  there- 
fore it  isagainft  the  Rules  of  War  in  Fight,  if  fome  of  the 
Enemies  Ships  are  there  difabled  •,  yet  thofe  Ships  that 
did  fo  difable  them,  if  they  are  in  a  condition  to  purfue 
the  Enemy,  cannot  during  the  Fight  take,  poftefs,  or 
burn  fuch  difabled  Ships,  and  the  reafon  is,  left  by  fo  do-  Artie.  8. 
in^  fome  more  important  fervice  be  loft^  but  they  are  to  wait 
for  fuch  Booty,  till  the  Flag-0?ciQtxs  fliall  give  command 
for  the  fame. 

Vluzzali\  King  of  Algier,  in  the  famous  Battle  of  Le- 
^anto,  having  behav'd  himfelf  very  valiantly  there  againft 
\\izChrijiians^  fo  that  he  deftroyed  feveral  of  their  Gall ies, 
and  others,  he  took  amongft  the  reft  of  the  Gallies  of  Pietra 
Em  of  Ccrfa^  of  the  Prior  of  McJJina.,  and  Ludovico   57- 
pco  of  I'rabUy  and  Benedeio  SoranzOy  the  which  he  tov/ed 
after  him  before  the  Battle  was  com  pleated  ;    but  that 
getting  proved  the  lofs  both  of  the  one  and  of  the  other ; 
for  the  ^urks  out  of  Covetoufnefs  of  the   Plunder,    or  jcj-j^^  Reipuhh 
otherwife  thronging   into   them,    occafioned  their    tak-  Venet.fQl.iz-j, 
ing  fire,  in  which  the  Vi5fors^  in  thofe  Flames  became  12S. 
M/W,  and  after  followed  the  total  Rout  of  the  Ottoman 

XI.  It  is  almoft  impofTible,  but  that  in  Ships  of  War, 
which  in  thefe  days  carry  fo  confiderable  a  force  of  men, 
thercj^ill  be  fome  amongft  them  that  have  Heads  of  kna- 
very,  and  Fingers  of  Lime-Twigs,  not  fearing  to  fteal 
ihac  from  their  Prince  which  is  applicable  only  for  the 


190  £>f  tfit  iSa&al  ^llitatv  patt  Book  I  ^ 

Good  of  their  Country  j    fuch  fort  of  Night-wolves  \M 

caught,    are  to  be  feverety  punifhed  -,    and  therefore  i 

Artie.  8.        fteal  or  take  away  any  Cables^    Anchors^    Sailsy    or  of, 

of  the  Ship*s  Furniture^  or  any  of  the  Powder  or  Arms  c 

Ammunition  of   the    Ship,   fuhjeBs   the    Offender  to  ti 

pains  of  Death,    or  to  fuch  other  Punifloment  as  the  ^.' 

lity  of  the  Offence  fhall  he  found  by   a   Court-Marlial  /j 


Jrik  g.  ^^         XII.  By  the  Kmth  Article,  Foreign  Ships  or  Feffelstok 

{wtdlng  Cyrus  ^^  Prize,  Without  fighting,  none  of  the  Captains,  Mafitn^ 

not  to  give  up  or  Mariners  being  foreigners,  JJjdll  be  ftripped  of  tkir 

Lydia  to  be    Cloaths,  or  in  any  fort  beaten,  pillaged,  or  evil  intreatti- 

pillaged  by     ^^^  Perfons  fo  offending  being  obliged  to  render  double  Damn ; 

'^m^^onme-  ^^is  Law  moft  exprefsly  doth  not  extend  to  thofe  thatob. 

am,h^uif,non  i^imtdy  fliall  maintain  a  Fight-,  for  mod  certain,  by  the 

rej  mtas  diri-  Law  of  Arms,  if  the  Ship  be  boarded  and  taken,  there 

^iTme'-lm"^  remains  no  reftridion  but  that  of  Charity  -,  and  if  a  Ship 

%apertineit:  ^^'^^  perfifl  in  the  Engagement,  even  till  the  laft,  and  then 

tua  funt,  tua  yield  to  mercy,  there  hath  been  fome  doubt,  *  whether 

nil  perdent.     Quarter  ought  to  be  given  to  fuch  (for  they  may  igno* 

^v'a'rdy'  ^^^^h  niaintain  with  courage  a  bad  caufe)  but  in  Captives 

reBelliyn^AQ.  ^"^  thofe  that  yield  or  defire  to  yield,  there  is  no  danger. 

^  60.  Now  that  fuch  may  be  juftly  killed,  there  muft  be  fome 

D^^C.deJu-  antecedent  Crime,  and  chat  iuch  a  one  as  an  equal  Judge 

ris^faaitg'  yff^^i^  think  worthy  of  Death  -,  and  fo  we  fee  great  feve- 

Princes  in-  ^i^Y  fl"iewed  to  the  Captives  and  thofe  that  have  yielded, 

deed  are  Go^^,  or  their  yielding  on  condition  of  Life  not  accepted,  if 

but  neither    afcgj-  ^hcy  were  convinced  of  the  Jnjuftice  of  the  War. 

hLrdie^°rf  -  ^^^^  ^^"^  neverthelefs  perfifted  with  Hatred  or  Cruelty; :: 

ersofTuppIi-  they  had  blotted  their  Enemies  Name  with  unfufferabi^ 

cants,  except  difgraces ;  if  they  had  violated  their  Faith  or  any  Rightoi 

they  be  juft.    Nations,  as  of  Ambafladors  j  if  they  were  Fugitives:  But 

,-,,     ^       -  the  Law  of  Nature  admits  not  Taliation,  except  againft 

-„,  wp^rir     the  very  individual  Perfon  that  hath  offended  ;  nor  doth 

K77j  Were  aC"  /  •  '  ,        I 

cufed  for  that  it  fuffice  that  the  Enemies  are  by  a  fidion  conceived  to 
they  flew  the  be  as  it  were  one  Body  -,  tho'  otherwife  by  the  Laws  o[ 
SiMren"of  ^^^^^"s,  and  by  the  Laws  of  Arms,  and  at  this  day 
Hycetl7!ht'  pta61if<^d,  in  all  Fights,  the  fm all  Frigates,  Ketches,  and 
caufe  Hycetas  Smacks  are  to  obferve  and  take  notice  of  the  EnemieJ 
hadflainthc  Fire-fhips  and  to  watch  their  Motion,  and  to  do  their 
^i^n-^""^!?"  bed  to  cut  off  their  Boats,  and  generally  the  perfons  foud 

o:  Uton.    Flu-    .        .  ,  1        1         r       1  it       rr  m     f-^ni 

tarch.  Timon  ^^  ^^^^  ^^'^  ^^  oe  put  to  deatb^  if  taken ^  and  the  Vej^ei^  tpo^ 
i:f  Dion.      *  taktii^ 

Chap.  XIII.  S)t  ti^t  ^atai  ^Uitavv  part  191 

')(ikeff  deftroyed  -,  and  the  reafon  v/hy  the  extremity  of  War 
i^  ufed  to  fuch,  is  that  by  how  much  the  Mifchief  is  the 
creater  by  the  A<^  of  fuch  Men,  if  executed,  by  fo  much 
{^t  PunKhment  is  aggravated,  if  taken,  and  Quarter  de- 
fied them  by  the  Law  of  War. 

'^^Xill.  E'u^U  Captain  or  Commander  upon Jignal or  order  of  Anic.  lo. 
W^U  ^^  'view^  or  fight  of  any  Ships  of  the  Enemy  ^  Pirate^ 
cr  Rehl,  or  likelihood  of  Engagement ^  are  to  put  all  things 
intbcSbip  in  fit  Pojlure  for  a  Eighty  as  the  breaking  down  the 
Cd'ins,  clearing  of  the  Ships  of  all  things  that  may  impede  the 
Soldkrs  in  the  preferving  the  Ship  and  themfelves,  and  enda- 
ming  the  Enemy  ;  and  every  fuch  Commander  or  Captain  are 
in  their  own  Perfons^  and  according  to  their  Place ^  to  hearten 
ad  encourage  the  inferior  Officers  and  Common  Men  to  fight 
<{j{iliantlyand  couragioufly^  and  not  to  behave  themfelves  faiyit- 
/v,  under  the  difgrace  of  being  cafhiered  \  and  if  he  or  they 
"kid  to  the  Enemy y  Pirate  or  Rebels  or  cry  for  quarter^  he 
friheyfo  doings  fhallfuffer  the  pains  of  Deaths  or  fuch  other 
:  Tunijhment  as  the  Offence  Jhall  deferve.    Now,  tho'  Soldiers 
or  Mariners  have  obliged  themfelves  faithfully  to  ferve 
in  the  Expedition  or  Navy  *,  yet  that  is  to  be  underflood 
ho  further  than  his  or  their  power  to  do  their  utmoft  in 
•  his  or  their  Quality  •,    for  though  the  Obligation  for  the 
Servicfe  be  taken   in  the  ftridefl  Terms  of  undergoing 
■  feth  and  danger;  yet  it  is  to  be  underflood  always  con- 
ditionally as  moil  Prom  ifes  are,  viz.  if  the  adion  or  paf- 
fioh  may  be  for  that  Fleet  or  Prince's  advantage;    and 
therefore  if  the  Fleet  or  Squadron  is  beaten  and  the  Ships 
are  difabled,  and  left  fcarce  without  any  to  defend  them, 
riowthe  Soldiers  or  *  Mariners  remaining  can  do  no  more  *  im^s  de 
for  their  Prince  than  die,  which  indeed  is  to  do  nothing  Mil.  Rom.  i.  2. 
at  all,  but  to  ceafe  for  ever  from  doing  any  thing  either  ^i^^-  6.  ^4. 
for  him  or  themfelves  ;  in  thofe  flraits  therefore  it  is  not  ^'^'^  ^^t^'? 
repugnant  to  their  Oath,  called  Sacramentum  Militare^  to  theOath  thus 
alk  quarter  or  to  flrike,  and  having  begg'd  a  new  Life  and  ohtemperatt^ 
tal^en  it,,  they  are  bound  in  a  new  and  juft  Obligation  of  nnfumy  ^ 
Fidelity  to  thofe  whom  they  were  bound  to  kill  few  ^^^^^^""^Ym^dabi- 
hcfore;  neither  can  the  Prince  or  General  exped  by  vir-  ll^Jblmpera- 
t^eof  their  former  Obligation  to  him,    they  ihould  kill  torihusy  juxta 
inyin  the  place  where  the  quarter  was  given:  However,  *vires  :'dud 
this  Fidelity  hath  not  its  inception  from  the  time  of  ta-  ^"'^'^A^' 
•""g  quarter  j  but  when  the  Battle  is  over,  and  that  tim.e  MHUesper  Sa- 

which  cr  amentum. 


192  SDf  tl)t  iljahal  S^ilitaVV  pSitt    Book  i. 

which  is  termed  cold  blood  ;  for  without  all  controverfy 
if  a  Ship  be  boarded,  and  Qiiarter  is  given,  yet  if  while 
the  Fight  lafts,  the  Perfons  Captives  can  by  any  poffibi- 
lity  recover  their  Liberty  and  Ship,  they*  may  by  the 
*  Sir  Thomas    "^^^  ^/  ^^^^^y  j^^^Y  acquire  the  fame  *. 


fo  aboard  the  Katherine  m  the  War  with  Holland* 

And  fince  Impunity  is  granted  to  fuch  unfortunate 
Deferters,   yet  it  muft  be  apparently  evident  and  fully 
proved,  that  they  were  reduced  into  a  Condition  beyond 
all  hope  in  the  Battle :  and  therefore  the  Foot  that  for- 
fook  the  Unfortunate  Pompey  before  the  Field  was  lo(l,werc 
juftly  condemned  for  the  breach  of  the  Roman  Difciplinc 
and  Law  of  Arms  :  and  therefore  the  Article  hath  not 
pofitively  declared  Death  only,   but  added,   or  fuch  oikr 
Punifhment  as  the  Offence  (hall  deferve,    which  Provifi- 
on  leaves  the  A6i:ion  to  be  judged  -and  puniflied  by  a 
Council  of  War^  who  know  beft  what's  to  be  done  in 
Cafes  of  that  nature  5  however,  a  hafe  or  cowardly yuUini 
or  crying  quarter^  is  to  be  puniJJjed  with  Deaths  and  tkl 
without  Mercy. 
'Zencph.  C^r.        XIV.  The  obeying  of  Orders  hath  in  all  Ages  been  in 
Plutarch.        mighty  efteem  :  Chryfantus^  one  of  Cyrus\  Soldiers,  being 
^^'^' m"^-    "P<^r^  ^is  Enemy,  withdrew  his  Sword,  hearing  a  Retreat 
^^^/^^  founded  ;  but  this  comes  not  from  the  external  Lmii 

Vide  in  Tit.     Nations  i  for  as  it  is  lawful  to  feize  oh  the  Enemy's  Goodi, 
Shipsof  War.  fo  Ijkewife  to  kill  the  Enemy,  for  by  that  Law  the  Ene- 
mies are  of  no  account  ;    but  fuch  Obedience  proceeu 
from  the  Military  Difcipline  of  feveral  Nations.    By  th^ 
Leg.  defert.  D.  Romans  it  Was  a  Law  noted  by  Modeflinus^  That  whci 
iie  re  Milit.      evcr  obeyed  not  his  Orders,  fliould  be  punifhed  with  dead- 
though  the  matter  fucceeded  well  :  Now  he  alfo  was  fup- 
pofed  not  to  haVe  obeyed,  who  out  of  Order,  withoi^^ 
Li<v.  lih.  7.     |-|^e  Command  of  the  General^  entred  into  any  Fight.  Fct 
^^«^««;y;«-   .^~^^^j^  liberty  were  lawful,  either  Stations  would  be  de- 
ferred, or  (licence  proceeding)  the  Army,  Fleet,  or  Sqw 
dron  would  be  engaged  in  unadvifed  Battles,  which  by  ^' 
The  Order  of  means  is  to  be  avoided.     M.  Capello^  a  Venetian  Gentle 
Battle  is  to  be  man  of  an  antient  Extraftion,  having  the  Charge  of  tl"' 
aid^kr-1l*      g^i^rding  the  Venetian   Gulph  *,    met  with  the  5<?*'j' 
festhcv'ar-     Fleet y   whom  he  fo  affaulted^  that  he  burnt  and  ^^^ 

CHAP.  XIII.  m  f ^e  0aM  ^Uitavv  patt  193 

divers  of  them  ;  amongft  the  reft  the  Mmiral  Galley  of  to  endeavour 
Mlier,  (aVeffelof  vaft  bignefs)  which  he  brought  with -keep  mo^e 
him  away,  and  fhc  remains  at  this  day  a  Trophy  in  the  ^^  ^^^  ^^ . 
Mend  of  Venice  ;  the  Service,  although  Noble  and  Ho-  and  though 
nourable,  and  fuch  as  brought  renown  to  the  Republick,  they  have 
yet  in  regard  it  was  an  Afiion  exceeding  his  Commi(rion,^^^^^^^^°^_® 
he  was  adjudged  to  punifhment  (but  his  great  Merit  and  ^^^  y^^  ^^1^ 
Alliance  preferved  his  Life  :)  fuch  an  exa6b  Obedience  that  they  not  pur- 
Simry  expedls  to  be  paid  to  her  Orders,  be  the  Succefs  fue  a  fmall 
never  fo  glorious.     And  by  the  Eleventh  Article,  Every  "^^^^^'^l:^ 
Captain,,  Commander^  and  other  Officer^  Seaman  or  Soldier  ^f  ^Yiq  Ene- 
ojany  Ship,  Frigate y  or  Vejj'el  of  JVar^  are  duly  to  ohferve  my  be  beaten 
tk  Commands  of  the  Admiral^  or  ether  his  Superior ^  or  Com-  or  ^un.    Nor 
mander  of  any  Squadron^  as  well  for  the  affaulting  ^^^7"^^"  chafine  chafe 
ting  upon  any   Fleets    Squadron  ^    or  Ships  of  the   Enemy ^  beyond Vight 
t irate  or  Rebels ^    OY  joining  Battle  zvith  them,   or  making  of  the  Flag, 
defence  againft  them,  as  all  other  the  Commands  of  the  Ad-  and  at  night 
0nral  or  other  his  Superior  Commander^  the  difobeying  o^\,f^^]^^.^ 

,.*  ,  ~    .—^         .  /•      I  1  ouips  arc  XXj 

which  fubjects  him  to  the  pains  or  Death,  or  luch  other  j-etum  to  the 
Punilhnient  as  the  Quality  or  Negled  of  his  Offence  Ihall  Flag.  hp. 
deferve.  ^J,  23.  in 

May  I.  1666. 
*  Hiftory  of 
the  Republick  of  r^«/f^, /tf/.  170,  171. 

XV.  Again,  Every  Captain  and  all  other  Officers,  Ma*  Artie,  xz. 
riners  and  Soldiers  of  every  Ship,  Frigate,  or  Veffel  of  War^ 
foall  not  in  time  of  any  Fight  or  Engagement  withdraw  or 
keep  back  ;  but  on  the  other  hand,  they  are  to  come  into  the 
Battle,  and  engage,  and  do  their  utmofi  endeavour  to  take^ 
fire,  kill,  and  endamage  the  Enemy,  Pirate  or  Rebel,  and 
ajjift  and  relieve  all  other  his  Confederate  Ships  -,  and  if  they 
Jhall  prove  Cowards,  they  are  to  be  dealt  with  as  Cowards  '   / 

ought  by  the  Law  of  Arms,  which  is  to  fuffer  Death  :  But 
Circumftances  of  things  may  make  alteration  of  Matters, 
therefore  there  is  added  other  punifhment,  as  the  circum- 
ftance  of  the  Offence  fhall  deferve,    or  a  Court  Martial 
think  fit.     By  the  word  Captain  the  General  or  Admiral  is 
not  included,  but  all  Flag-Officers  and  others  under  them,  jlrTeji! i^nhl 
are  within  the  purview  of  the  Statute  by  the  denomination  ^eratore  uni- 
Cf  the  word  Captain,  &:c.  and  the  Reafon  wherefore  fuch  'verfirum  peri- 
Commanders  in  Chief  are  not  within  the  Law,  is,  be-  'll'^plmTfu- 
caufe  the  Weapon  of  a  General  is  his  Truncheon,  but  of  i°"'quamuni^ 

N  all  fverfacivitas. 

194  ^f  tif)^  i^3t»ai  0^tittarr  part  Book  i. 

CUarchus  Cyro  all  Other  Officers  is  the  Sword  j  a  General  is  only  tocom- 
deditconfilium,  jyjand,  and  the  reft  to  execute,  for  in  the  latter  is  the 
lk!tmopr.'  ^^"ger  only  of  one  Man's  life,  but  in  the  firft  is  the  ha- 
ret/ed  in/pe-  zard  of  all  *,  therefore  by  the  Law  of  Arms  no  General  q: 
aoremfi  pug-  Admiral  in  Chief  ought  to  expofe  their  Perfon  to  apparent 
v^  gereret ;  Peril,  but  in  cafe  of  a  general  Overthrow  and  manifcft 
fugnantem       Defeat.     Fcter  CapponL  the  Famous  General  for  the  Eo- 

entm  carpers  .         -t-r        ?  _  \       r\ 

mlmagnieffi-  renttnes  befieging  Soiana^   and  encamping  on  the  River 

eeref,  fi  ^>ero  Cofina  -^  ;  being  in  a  Place  of  danger,  extreamly  incju. 

quiddamniac'  f^j-^Q^^s  about  planting  his  Battery,  was  ihot  with  alir- 

fittrditw'um  ^l^ebufs,  immediately  upon  which  the  Siege  was  raifedj 

quos  fecum  ha-  yet,  on  the  other  hand,  let  it  be  examined  where  any  fa- 

heret.  Polyb.  mous  battle  hath  been  obtained,  and  the  fame  was  not 

^-I'c'tc'ard  I  S^^'  ^^^^  °"^^  ^y  ^^^  Conduct,  but  likewife  by  the  fingje 

'^.jphor^z'i.'  ^^^  perfonal  Courage  of  the  General. 

There  are  fome  Offices  to  be  done,  even  to  them  from 
whom  you  have  received  an  Injury  ;  for  Revenge  and  Pu- 
nifhment  muft  have  a  meafure  ^    and  therefore  the  IlTues 

CUero  Office  I.  of  the  Roman  Wars  were  either  mild  or  neceifary  :   Now 

^  2.  -when  killing  is  juft  in  a  juft  War,  according  to  internal 

Juftice,  may  be  known  by  examining  the  Caufes  or  End 
of  the  War,  which  may  be  for  the  Confervation  of  Life 

Grotius  de      ^nd  Members,  and  the  keeping  and  acquiring  of  things 

Jr^/c   /  I  ^c  "^^^^^  ""^^  ^^^^  '  ^^^  ^"  ^^^  affaulting  of  Ships,  it  hap- 

2.  §.*!.'   *  '  P^^s  that  one  is  flain  on  purpofe  or  without  purpofe  ;  on 

purpofe  can  no  man  be  flain  juftly,  unlefs  either  for  juft 

punifhment,  as  if  without  it  we  cannot  protect  and  defend 

our  Life,  Goods,  and  Country,  ^c.  That  fuch  Puniih- 

ment  may  be  juft,  it  is  neceflary  that  he  who  is  flain  have 

offended,  and  that  fo  much  as  may  be  avenged  with  the 

punifhment  of  Death  in  the  Sentence  of  an  equal  Judge. 

Mijericordia     Now  we  muft  notc,  between  full  Injury  and  mere  Mif- 

inforiunits  de-  ^Qxtui'it  often  intercedes  fome  mean,  which  is  as  it  were 

Mib'eratd^^^  compofed  of  both,  fo  that  it  can  neither  be  called  the  Ad 

fcuntid  male    ^^  One  knowicg  and  willing,  nor  merely  the  adl  of  one 

agit,  nonin-    ignorant  or  unwilling. 

^"itus -'^tll'  ^^^^  Diftinftion  by  rhemiftius  is  fully  illuftrated  :  itf« 
^/mVhatha  ^^'^'^  ^''^^^  ^  difference  betwixt  an  Injury ^  a  Faulty  and  a 
Saying  out  of  Misfcrtune  ;  altkoiigh  you  neither ftudy  Plato,  7iorreadhi\' 
Demcfthenes ;  ftotle,  yet  you  put  their  Bo5lrine  in  practice  ;  for  you  hcvi 
e  mult     ^  j^^^  thought  them  worthy  cf  equal  punifhment^  who  from  A^ 

fion  to  thcfe '"  ^^('■ginning  perfuaded  the  JVar^  and  who  afterward  were  car- 

wiiom  i  or- 

Chap.^ui.  Mti)tmhaimiiitavvp&vt  195 

ried  with  the  ftream^  and  who  at  lafi  fiibmitted  to  him^  that  toae,  not 
nowfeemed  to  have  thehigheft  Power  ;  thefirftyou  condemned^  ^^^'^  own 
the  next  you  chajiifed^  the  lafl  you  pitied.     Moil  certain,  J^aje^^ifeJa- 
to  fpare  Captives  or  Prilbners  of  War,  is  a  command  of  ble. 
Goodnefs  and   Equity  ;    and  in  Hiftories  they  are  often 
%)mmended,  who  when  too  great  a  number  prove  bur- 
"^henfome  or  dangerous,  chofe  rather  to  let  them  all  go  ^"pioJEmili' 
than  to  (lay  them,  or  detain  them,  though  for  Ranfoms  ;  q'^^^^I^  ^^^   c 
as  in  the  lall  Flemijh  Wars  with  England.    So  for  the  fame  Carthaoe,  pro- 
caufes,    they  that  flrike  or  yield  up  themfelves  are  not  claim'd  that 
to  be  {lain  (though  there   is  no  Provifion  made  by  Cove-  ^^n  ftiould 
iiant).  In  Towns  befieged  it  was  obferved  by  the  Romans,  wou'd  ^ 
before  the  Ram  had  fmitten  the  Wall  ;  C<efar  *  denoun-  pdybius,  'vide 
ceth  to  the  Aduatici^    he  woyld  fave  their  City,  if  before  Tacitus  AnnaL 
thQ  Ram  had  touched  the  Wall,  they  yielded;    which  is  ^2. 
llill  in  ufe  in  weak  Places,  before  the  great  Guns  are  fired  -,  [^fj^pfj^^'^ 
%  ftrong  Places,  before  an  Afiault  is   made  upon  the  i.iSHen.z'i 
^Walls  -f  ;  and  at  Sea,  by  firing  one  or  two  Guns,  or  hang-  Thucyd.  lib,    • 
'''fegout  the  Bloody  Flag,    according  as  the  Inilrudions  '*C.^farlib.  2, 
-are-;  however  till  there  be  an  abfolute  yielding  or  quarter  f  ^/^^^Ji^*^^" 
'  cried,  by  the  Law  of  Anns,  as  well  as  the  abovementioned  Germany  be- 
^-Artlcle,  every  Commander  and  Soldier  is  to  do  his  utmofl  ing  taken  by 
^\o  take,  fire,  kill,  and  endamage  the  Enemy,  or  whatfo-  ;^^'^"^^'  ^^^ 
%er  may  tend  thereunto.  .        ^^^^l^f 

burnt,  and  the 
Prifoners  all  put  to  Death.     PhiL  Cofnin.  lib.  2.  cap.  i, 

XVI.   ^y  xht  Law  of  Arms,    he  deferves  punifliment 
^who  doth  not  keep  off  force  that  is  offered  to  his  Fellow 
''Soldier  ;  and  though  it  hath  been  conceived,  if  there  be 
raanifeft  danger,  that  he  is  not  bound  to  come  into  his 
^Relief;  for  fuch  Commander  may  prefer  the  lives  in  his  I  will  defend 
Ibwn  Ship  before  thofe  in  another,  yet  that  fuffices  not  ;  n^y  Compa- 
for  every  Soldier  by  the  Law  of  Arms  is  not  only  bound  "!^^"^^^^^ 
^to  defend,  but  alio  to  affift  and  relieve  his  Companion  :  ownBIood"^^ 
now  Companions  are  in  two  refpecls,   either  thofe   that  and  partake 
are  in  adual  fervice  with  fuch  Soldiers,    or  thofe  that  i^  i»is  danger, 
are  not,  but  only  committed  to  their  Protedion  or  Con-  Ben. 
"▼tjy,  which  are  to  be  defended  and  guarded  at  the  fame 
peril  and  charge  that  a  fellow  Soldier  is  ;  and  therefore 
all  Ships  that  are  committed  to  Convoy  and  Guard,    ^'hey  Artie.  13. 
i^e  diligent l^  and  carefully  to  he  attended  upon  without  del^y, 

N  2  according 

1 96  flDf  tlje  iljabal  S!diUtSitt  putt    Book  I. 

according  to  their  hftrii^ions^  in  that  behalf :    And  whofi. 

ever  Jhall  he  faulty  therein^  and  fhall  not  faithfully  perform 

the  fame^  and  defend  the  Ships  and  Goods  in  their  Convoy^ 

without  either  diverting  to  other  farts  or  occafions^  or  re- 

fufing  or  negle5fing  to  fight  in  their  defence^  if  they  be  fst 

upon,  or  aff ailed ^  or  rwining  away  cowardly ^  and  fuhmitiim 

thofe  in  their  Convoy  to  Hazard  and  Perils  or  Jhall  demand, 

cr  exaU  any  Money  or  other  Reward  from  any  Merchant  n 

Mafier,  for  convoying  of  any  fuch  Ships  or  other  Vejfels  h* 

longing  to  His  Majefly^s  Subje^s,  fhall  be  condemned  to  maki 

reparation  of  the  Damage  to  the  Merchants,  Owners,  pp 

others,  as  the  Court  of  Admiralty  fhall  adjudge,    and  aifih 

he  punifhed  criminally  according  to  the  quality  of  their  Offeu' 

ces,  be  it  by  Pains  of  Death  or  other  Punijhmenty  according 

GS  fhall  be  adjudged  fit  by  that  Court  Martial         '  ,j£ 

Prote6lion  of  Convoys  by  the  Laws  of  Nations ^  is  ofoj( 

£t':am  hujus    gfcat  Utility  to  a  Kingdom  or  State  •,    therefore  when 

ret  inferis  i-   Violence  is  offered  to  thofe  Ships  under  Convoy,  they 

magoquadam.  ^j.g  ^^^  fg^j^  ^q  bg  ^q^^  ^q  them,  but  to  thofe  Ships  ojf 

ter^^pcenam'  "^^^  under  whofe  Guard  they  pafs  ;  and  therefore  when 
confur^it.  Violence  is  offered  to  fuch,  publick  Revenge  is  let  io, 
Plin.  Hift.  according  to  that  of  Tacitus,  Hefhould  provide  for  tkir 
Nat.  8. 16.  Security  by  ajufi  Revenge.  Now  that  fuch  Ships  may  not 
fuffer  Wrong  from  their  Invaders,  two  ways  may  be  taken 
by  their  Convoys  :  firft,  by  deftroying  him  or  them  that 
fhall  have  attempted  and  commited  any  hoftile  Adt  againft 
any  thing  under  their  Protedlion  ;  fecondly,  by  all  ways 
imaginable  endeavour  the  w^eakning  his  or  their  Force, 
that  he  or  they  may  not  be  able  to  do  any  other  or  further 
Hurt ;  therefore  there  is  no  doubt  but  Vindication  to 
thefe  Ends  is  within  the  Bounds  of  Equity,  though  this 
is  no  more  than  private  ;  yet  if  he  refpedl  the  bare  Law 
of  Nature,  abftradl  from  Laws  Divine  and  Human,  and 
from  all  not  necefiary  Accidents  to  things,  it  is  not  un- 
lawful, whether  the  Satisfaction  or  Revenge  is  taken  by 
Convoy  Ships  themfelves,  or  the  wronged  ones  under  his 
or  their  Guard  or  Prote6tion,  feeing  it  is  confentaneous 
to  Nature,  that  Man  fhould  receive  Aid  from  Man ;  and 
in  this  Senfe  may  be  admitted  that  faying  of  Cicero,  ?i^ 
Law  of  Nature  is  that  which  comes  not  from  Opinion,  tut 
innate  Virtue  :  Among  the  Examples  of  it  is  placed  Findi- 

cation,  which  he  oppofes  to  Favour  j  and  that  none  might 


Chap.  XIII.  <^(  tf)t  Baikal  WUitavv  part  197 

I  doabt  how  much  he  would  have  underftood  by  that  name, 
i  he  defines  Vindication,  whereby^  by  defending  or  revenging^ 
^  wskeep  off  Force  and  Contumely  from  us  and  ours^  who  ought 
to  be  dear  unto  us^  and  whereby  we  punifh  Offences. 
>  Now'thofe  Ships  that  are  not  under  Convoy,  but  en- 
gaged in  Fight,  are  faithfully  to  be  relieved  ;  and  there- 
fore if  a  Squadron  fhall  happen  to  be  over-charged  and 
diftrefled,  the  next  Squadron  or  Ships  are  to  make  to-  _ 
wards  their  relief  and  afliftance  upon  a  Signal  given  them. 
Again,  Ships  that  are  difabled  by  lofs  of  Mails,  fhot 
under  Water,  or  the  like,  fo  as  they  be  in  danger  of  fink^ 
ing  or  taking,  the  diftrefled  Ships  generally  make  a  Sign 
by  Waft  of  their  Jack  and  Enfigns^  and  thofe  next  to  them 
arc  bound  to  their  Relief-:  but  yet  this  does  not  always  i 

hold  place  ;  for  if  the  diftrefled  Ship  is  not  in  probability 
of  finking,  or  otherways  encompafled  with  tiie  Enemy, 
the  Reliever  is  not  to  ftay  under  pretence  of  fecuringthem, 
but  ought  to  follow  his  Leader  and  the  Battle,  leaving 
fuch  lame  Ships  to  the  Srernmoft  of  the  Fleet,  it  being 
an  undoubted  Maxim,  'That  nothing  hut  beating  the  Body  of 
the  Enemy  can  e ff equally  fecure  fuch  difabled  Ships, 

XVII.    It  is  not  enough  that  Men  behave  themfelves 
valiandy  in  the  beating  of  an  Enemy,  for  that  is  not  all, 
but  the  reducing  of  them  into  a  condition  to  render  right 
either  for  Damage  done,  or  to  render  that  which  is  right ; 
which  can't  well  be  done  without  bringing  him  to  Exi- 
gences and  Straits  y  and  therefore  if  the  Enemy,  Pirate,  or 
Rebel  be  beaten,   None^    through  Cowardice^   Negligence^  ^^//^.  i^; 
or  Difaffe^ion,    ought  to  forbear  the  purfuit^    and  thofe  of 
them  fly  ing 'y  nor  ought  fuch  either  through  Cowardice^    Neg-  But  that  is  ta 
li^ence^  or  Bifaffe^ion^  forbear   the  affjlance  of  a  known  be  underftood 
Friend  in  view^    to  their  utmoft  Power ^    the   Breach  ^^f  ofj^iV* 
which  fubjeds  the  Offenders  to  the  Pains  of  Death,  or  at  chapte?, 
leaft  fuch  Punifhment  as  a  Court  Martial  fliall  think  fit. 

Empires  are  got  by  Arms,  and  propagated  by  Vidlory  ^ 
and  by  the  Laws  of  War^  they  that  have  overcome,  fhould 
govern  thofe  they  have  fubdued.  Hence  it  is,  that  Gene-r 
rals  having  compleated  a  Conqueft  in  a  juft  War,  and  ia 
chafe  or  otherwife  have  taken  the  Ships  or  Goods  of  the 
Enemy,  have  abfolute  Power  over  the  Lives,  Eft^tes> 
Ships  and  things  that  they  by  Force  of  hxm,^  hay?  acqu.;-. 
Fed  by  the  Lavos  of  Nations, 

N  3  Bui 


198  Mtf^tf^am^ilitaV^pSLVt   Book  1.0 

But  yet  in  fuch  Conqnefts  where  the   reeking  Sword . 

knows  no  Law,  that  is,  they  are  done  impune^  without 

Punifhrnent,    (becaufe  co-a6live  Judges  do  grant  them 

7acit.  3.  Jn-   their  Authority)  yet  fuch  Power  may  be  exorbitant  from 

ftal.  Pompeius   ^j^^^  R^^]e  ^f  Right  called  Virtue  -,    and  though   by  the 

^dii7^°uamdl'.    ^^"^  ^f  ^^^  Captives  may  be  flain,    yet  what  Law  for- 
Uaaerant,      bids  not,  Modefty  prohibits  to  be  done,    Hence  it  is  tllat 
Generals  do  often  reftrain  that  Power  of  killing  ;    for 
though  fuch  Prifoners  of  War  do  fight  for  the  Mainte- 
nance of  an  unjuft  Caufe,  and  although  the  War  is  begun 
by  a  folemn  Manner  •,  yet  all  A^^s  that  have  their  rife  from  > 
thence,  are  unjufb  by  internal  Injuftice,    fo  that  they  who 
*Grot.deJun  knowingly  do  perfift  in  fighting,  *  yet  ought  they  not  al- 
Belhac  I' acts,  y^^ij^  ^q  [-,g  {]ain,    according  to  that  of  Seneca  \    Cruel  m 
•i-lde  ciem    ^^0'>  ^^ys  he,  i"  that  have  Caufe  of  Punifhment^  lut  havens 
(ap.  4.  jneafure.     For  he  that  in  punifhing  goes  further  than  k 

meet,  is  the  fecond  Author  of  Injury  ;  and  the  principal 
Reafon  why  Mercy  is  often  fhewed,  is  for  that  Soldiers  of 
Fortune  offend  not  out  of  any  Hatred  or  Cruelty,  butoor^ 
•  of  Duty. 

XVIIL  Again,  Generals  m  the  Meafure  of  killiil^J 
look  commonly  no  further  than  the  Dell:ru6lion  of  thofe 
who  by  Force  of  Arms  oppofe  them  -,  and  though  Ships 
or  Cities  are  taken  by  Affault,  the  which  by  the  Laws  of 
War  fubjedls  every  individual  to  the  Mercy  of  the  Con- 
queror, yet  Children,  Women,  old  Men,  Priefls,  Scho- 
^.^  lars',  and  Hufbandm.en  are  to  be  fpared  -,  the  firfl  by  the 

^'.,j!^^r.  ^'}L  Law  of  Nature,  accordins;  to  that  o{  Camillus  :    We  have 
1,  ^  5.  Arms^  fays  he,  not  again jt  that  Age  which  even  in  taking 

Cities  is  fpared^  hut  againft  armed  Man  :  and  this  is  the 
Law  of  Arms  amongfl  good  Men  ;  by  which  we  are 
to  note,  that  by  the  Words  good  Men,  as  is  obferved, 
"W'e  mean  the  Law  of  Nature,  for  flridly  by  the 
Grctiiis,  tik  Law  of  Arms,  the  Slayers  of  them  are  without  Punifh- 
^'^^^-y-     ment. 

who  oblerves, 

that  many 

Pretences  may  be  found  out  againft  ?vlen  of  mature  Age,  but  agalnll  Infants,  Calumny 

itfelf  can  iind  nothing  to  fay,  as  being  clearly  Innocents.  ^ 

Now  that  which  hath  always  place  in  Children  that 

have  not  attained  the  ufe  of  Reafon,  for  the  moft  part 

prevails  with  Women  5   that  is,  unlefs  they  have  commit- 

ichap.  XIII.  mti)t  0abal09ilttar?  paxt  199 

r:u  fomething  peculiarly  to  be  avenged,  or  do  ufurp  man- 
1/  Offices,  as  flinging  of  Stones  from  the  Wails,  pour-  Herod,  in  Vu 
ngdown  burning  Pitch,  Brimftone,  and  the  like  bitumi-  ^J;^^^'"'"'''- 
tinpus  ScutlV  firing  of  Guns,  and  the  like  ;  for  it  is  a  Sex     '  ^^'''' 
li'that  hath  nothing  to  do  with  the  Sword,  that  are  capable 
5(1  of  that  Clemency. 

i  The  like  for  Old  Men,  who,  Papinius  obferves,  are  Papjn.  nuUh 
ilnot  to  be  flain  •,  fo  for  Miniflers  of  facred  things,  even  'violabUh  ar^ 
1!  barbarous  Nations  have  had  them  in  Reverence  and  Pre-  ^^"    y^^  "^n 

II  fervation  ;  ^s  t\\^  Philijiines^  Enemies  of  the  y^ix;^,  did  to /^^J. 

lithe  College  of  Prophets^  to  whom  they  did  no  Harm  :  and  i  Sam.  x.  5. 
ilwith  thofe  Priefls  are  juftly  equalled  in  this  Refped,  they  ^^'^  ^  S^"^' 
•'lat  have  chofen  a  like  kind  of  Life,  as  Monks  and  Pent-  ^^^'  ^  ' 
nts^  whom  therefore  as  well  as  Priefls,  the  Canons  fol- 
(I  lowing  in  natural    Equity    will    have   fpared  :    to  thefe  Cch's  zd  /#- 

III  are  defervedly  added  thole  that  give  tl>emfelves  to  the/-'^-^S. 
^  itudy  of  good  Learning  and  Sciences  ufeful  to  Mankind, 

11  be  it  in  [7///'i;^;;y?//>j,  or  other  publick  Schools  gy  Colleges. 
But  yet  if  any  of  thefe  be  taken  in  adual  Service,  they 
then  may  receive  the  common  Fate  of  others.  So  our 
King  Richard  the  Firft,  having  taken  the  Martial  Bifliop 
of  Beauvais  Prifoner,  received  a  Letter  from  the  Pops^ 
that  he  fhould  no  longer  detain  in  Cuflody  his  dear  Son  ; 
the  King  fent  the  Pope  back  the  Armour  wherein  he  was 
taken,  with  the  Words  of  Jacob's  Sons  to  their  Father, 
See.  whether  or  no  this  he  the  Coat  of  thy  Son^ 

To  thefe  are  added  Tradefmen,  fo  likewife  Merchants,  Leg.execut.C. 
which  is  not  only  to  be  underflood  of  them  that  flay  for  ?^^  res^ign. 
a  time  in  the  Enemy's  Quarters,    but  jDf  perpetual  Sub- 
jeds  •,  for  their  Life  hath  nothing  to  do  with  Arms,  and  P^ide  2  /«///, 
under  that  Name  are  alfo  contained  other  Workmen  and^^-.  5^.  ^ 
Artificers,  whofe  Gain  loves  not  War  but  Peace.  Ra*,' 127^/  ' ' 

Again,  Captives,  and  thofe  that  yield,  are  not  to  be 
flain,  for  to  fpare  fuch  is  a  Command  of  Goodnefs  and  Eqiii- 
i}\  fays  Seneca  -,  however  it  may  fo  come  to  pafs,  that  ^^  Benejic.  |, 
though  the  military  Power  may  exempt  a  Prifoner  of^^^-*^-' 
War  from  the  Execution  of  the  Sv/ord,  yet  it  may  be  out 
of  their  Power  to  exempt  or  difcharge  a  Delinquent  or 
Traitor  from  the  Execution  of  the  Magiflrate,  as  if  the 
Fleet  were  prepared,  and  the  War  principally  begun  fop 
the  Suppreffion  of  fuch  5  and  the  Reafon  of  this  is,  if  i% 
(hould  be  in  the  Power  of  one  Soldierj  who  takes  a  Trai-. 

N  4.  ^?? 

tor  Prifoner  upon  fuch  Terms,  it  would  pari  ratione  be  in 

the  Power  of  all  to  pardon  ;  not  that  the  Article  hath  no 

Lihertinum  in-  efFc^l,  for  the  Traitor  is  by  that  freed  from  the  immedj. 

gratum  in pri-  ^^^  Exccution  of  the  Sword;  Sure  it  is,  that  iftheyieli 

fernjitutlm!^^  iog  be  \n  aperto  pr^lto^  methinks  abfolute  Pardon  is  im, 

Fortefcue,       plicitly'in   the  Con  trad :    however    this  is  undeniable, 

cap.  ^6,         that  having  yielded  himfelf  Prifoner  of  War,   if  hcc- 

fcape,  he  forever  lofes  the  Benefit  of  the  Promifc.    Nor 

are  Hoftages  to  be  deftroyed,  according  to  that  of  Scipid^ 

Li'v.  lih.  28.  who  fa  id :    He  would  not  Jhew  his  Difpleafure  on  harmkfs 

T^t  ^^^/-      Hojlages^  but  upon  thofe  that  had  revolted  ;  and  that  he  wouii 

in  Nice^aT^   ^^^  ^^^^  i^fi;^;/^^  of  the  unarmed^  but  of  the  armed  Emm), 

'Tis  very  true  by  the  Law  of  Arms,  if  the  Contraft  be 

broke  for  which  they  became  Hoftages,  they  may  beflalnj 

Grot,  lih.  3.    that  is,  the  Slayer  is  without  Punifhment :  But  yet  fomc 

tap.  II.         conceive  the  Slayer  is  not  without  Sin,   for  that  no  fuch 

Contra6t  can  take  away  any  Man's  Life  5    that  is,  I  fup- 

pofe,  an  Innocent's  Life  ;  but  without  Controverfy,  if 

thofe  that  become  Hoftages  be,   or  were  before,  in  the 

number  of  grievous  Delinquents,  or  if  afterwards  he  hath 

broken  his  Faith  given  by  him  in  a  great  Matter,  the 

•     Punifhment  of  fuch  may  be  free  from  Injury.  /  . 

XIX.  Where  Offences  are  of  that  nature  as  they  raay 

feem  worthy  of  Death,  as  Mutiny,  and  the  like, 

will  be  a  Point  of  Mercy,    becaufe  of  the  multitude  of 

them,    to  remit  extreme  Right,   according   to  that:of 

Seneca  :  The  Severity  of  a  General  fhews  itfelf  againft  Far- 

10  ^  9uicQuid  ^^'^^^^^-^5  ^^'^  Pardon  is  necejjary  when  the  whole  Army  is  rt- 

multii peccatur  voUing  :  What  takes  away  Anger  from  a  wife  Man?  tht 

inultum  eft.      multitude  of  'Tranfgreffors,     Hence  it  was,  that  cafting  of 

Magismonendo  %  L^^g  ^^s  introduced  that  too  many  might  not  be  fub- 

fie  enim  agm-l^^^^  '»  punifliment. 

dum  eft  cum 

tnultttudine  peccantiuntf  feveritas  autem  exercenda  eft  in  peccaia  paucarum,     Vidt  Gailiao 
de  Pace  publ.  //^.  11.  <:^^.  9,  36. 
*  FideQrot,  lib,  3.  cap.  il.   §.  17. 

However  all  Nations  have  generally  made  it  a  Hand- 
ing Rule  in  the  Punifhment  of  Mutineers,  as  near  as  pof- 
t  ^'^v'ji-^'   ^^t>le,  to  hunt  out  the  Authors,  aad  make  them  Exam- 

Jure  Beih,  n.  ^1        ,  '      ^ 

55.  lib.  2.      F^s  T. 


Cfl  AP.  xiii.  flDf  t^e  |5aftai  ^ilitavv  psitt  20 1 

And  therefore  by  the  15th  Article.     Jf  any  Man  at  Artie,  i^^ 
m  timey  when  Service  or  A^ion  is  commanded^  fhall  pre-^ 
(utm  to  ftop^  or  put  backwards  or  difcourage^  the  faid  Ser- 
'ifice  and  A^ion^  by  pretence  of  arrears  of  Wages ^  or  upon 
m pretence  of  Wages  whatfoever^  they  are  to  fuffer  Deaths 
and  indeed  the  fame  ought  to  be  without  Mercy,  by  how 
much  the  more  they  may  raife  a  Mutiny  at  a  time  when 
there  is  nothing  expedled  but  an  Adion,  and  the  Ihew- 
ing  the  moft  obfequious  Duty  that  poflibly  may  be  ;  the 
Breach  of  which  may  occafion  the  Damage  of  the  whole 
Fleet,  and  being  of  fuch  Dangerous  Confequence,  ought 
to  be  feverely   puniflied.     Guftavus  Adolphus  upon  his 
firft  entrance  into  (jermany^   perceiving  how  that  many 
Women  followed  his  Soldiers,  fome  being  their  Wives, 
and  fome  wanting  nothing  to  make  them  fo  but  Marri- 
age, yet  moft  pafling  for  their  LandrelTes  (though  com- 
monly defiling  more  than  they  wafh)  the  King  coming 
to  a  great  River,  after  his  Men  and  the  Waggons  were 
pafled  over,  caufed  the  Bridge  to  be  broken  down,   hop- 
ing fo  to  be  rid  of  thefe  feminine   Impediments ;    but 
they  on  a  fudden  lift  up  a  panick  Shriek  which  pierced 
the  Skies,  and  the  Soldiers  Hearts  on  the  other  fide  of 
the  River,  who  inftantly  fell  into  Mutiny,  vowing  not 
to  ftir  a  Foot  further  except  with  Baggage,  and  that  the 
Women  might  be  fetched  over,  which  was  done  accord- 
ingly ;  for  the  King  finding  this  ill  Humour  fo  generally 
difperfed  in  his  Men,    that  it  was  dangerous  to  purge  it 
all  at  once,  fmiled  out  his  Anger  for  the  prefent,   and 
permitted  what  he  could  not  amend.     So  likewife  the  Artie,  19, 
uttering  any  Words  of  Sedition  or  Mutiny^   or  the  endea- 
vouring to  make  any  mutinous  Affemblies  upon  any  Pretence 
whatfoever^   is  made  Death  :   And  the  very  Concealers  of  Artie.  34. 
my  traiterous  and  mutinous  TraEtices^  TieJignSy  or  Words^ 
w  any  Words  fpoken  by  any  to  the  Prejudice  of  His  Majejly 
or  Government^  or  any  Words^  Pra^ices^  or  Dejigns  tend^ 
ing  to  the  Hindrance  of  the  Service^  and  fhall  not  reveal  them^ 
fubje£i  them  to  fuch  Pains  and  Punifhments  as  a  Court 
Martial  fhall  think  fit.     And  whereas  in  any  of  the  Of- 
fences committed  againft  any  of  the  Articles  for  the  Go- 
vernment of  any  of  His  Majeftyh  Ships  of  War,  within 
the  narrow  Seas,    whein  the  Pains  of  Death  are  to  be 
inflidledjj   Exequtjon  of  fuch  Sentence  ought  not  to  be 

'" ■  p:iade 

202  €)f  t^t  j^atai  a^iittarp  part  Booki. 

jirtic.  20.  made  without  Jeave  of  the  Lord  Admiral  *,  this  of  Mutim 
is  totally  excepted,  for  fuch  may  be  executed  immc. 

XX.  It  is  not  lawful  for  Princes  or  States  to  make  of 
Grotiui,  1. 3.  their  Enemies  Traitors,  or  caufe  them  to  defert  the  Scn 
^.  I.  §.  yj\^^  of  their  Prince,    or  to  bring  over  their  Ships,  Ordi. 

nance,  Provifions,  or  Arms  •,  for  as  'tis  not  lawful  for  any 
Subjedl  to  do  the  fame,  fo  neither  to  tempt  him  ;  for  he 
'   that  gives  a  Caufe  of  finning  to  another,  fms  alfo  him. 
felf-,  but  if  a  Man  will  voluntarily,    without  any  other 
♦  I     T  «/*-  "^"^P"^^^  ^^^^  ^^^^  ^^"»  bring  over  the  Ships^  or  Armies, 
fu<T.^de  acoT  ^^  defert    the  Service  of  his  Prince    to   ferve   another, 
rerumdom.Po-  thls,  though  a  fault  in  the  Deferter,  is  not  in  the  Recei- 
Ijfb.  in  excerp.  yet :  JVe  receive  a  Fugitive  by  the  Law  of  War^  (faith  * 
^^^^^ivp   ^d'  ^^V^^)  ^^^^  ^^t  ^^  ^^  ^^^  agalnft  the  Law  of  War  to  dm 
Proteaor  Idem  ^^^>  '^^'^'^  having  defer  ted  his  Princess  part^  ele^ed  bis  Em- 
ms docet,        my's  ;  nor  are  fuch  to  be  rendered,  except  it  Ihall  be  a^ 
•\PhiLComtn.  gtccd,  as  in  the  Peace  of  ^  Lewis  the  Eleventh.  However 
/;^.  4.  ftf/.i2.  fuch  fort  of  Gameflers,  if  caught,  are  to  be  feverely{)u- 
Artic,  16.       liifhed  ;    and  therefore  it  is  provided.    That  if  any  Sea- 
Captain y    Officer^   or   Seaman^   fhall  betray  his  Trufty  tr 
turn  to  the  Enemy ^  Pirate^   or  Rebels  or  run  awaywitb 
their  Ship  or  Ordinance^    Ammunition^    or  Provifm^  U 
the  weakening  of  the  Service^    or  yield  the  fame  up  to  tht 
Enemy i  Pirate  or  Rebels  they  fJj all  be  punifijed  with  Death  \ 
Attic.  17.       fo  like  wife.    If  any  defert  the  Service  or  the  Employ  tmi 
which  they  are-in  on  Ship-board^  or  fhall  run  away  or  ent'm 
any  other  fo  to  do^   they  are  fubje5l  to  the  like  pain  of  Btalk 
Terml  Ado!  ^^^  ^^  ^^^  ^^^  ^^  Nations,  fuch  Deferters*  that  run  away 
9.  c.  quando   ftom  their  Colours  or  Fleet  before  Peace  proclaimed  and 
iic£at,l.2.  ?V7  concluded,    all   Perfons  of  that  Prince  from  whom  they 
reos  majejlatis  fl^d,  have  a  Right  indulged  to  them  to  execute  publick 

fies  omnis  homo  l^^VCngC. 

piiles.     Vide 

Grot.  lib.  I.  cap.  5.      Hetley  Rep.  235.   J  H.  7.  cap.  1,    3  H.  8.  cap.  5.  HuU.  134. 

Liv.l.z.c.  3.  XXI.  By  the  Laws  of  Nations,  Spies  may  be  fent  to 
Cofj'ft^^^'  view  and  furvey  the  Enemy's  Force,  Fleet,  Station,  and 
pu„^  '  make  difcovery  of  whatfoever  may  give  Advantage  to  the 

Perfons    fending,    as   is   mentioned  above  •,    but  being 
deprehended  they  are  put  to  Death  ;    and  therefore  ij 
Artie.  18.      any  Perfon  fJ^all  come  from  or  be  found  in  the  nature  tij 

l^jiAP.  XIII.  m  ti)t  j^aftsi  ^iiitsitv  pan.  203 

^'pifs  to  bring  tiny  /educing  Letters  or  Mejfages  from  any 

i  7^gfjjy  QY  Rebels  or  Jhall  attempt  or  endeavour  to  corrupt  any 

,  ^-'(imln^  Officer^  Mariner^    or  other  of  the  Navy  or  Fleets 

i  betray  his  or  their  'Truft^  or  yield  up  any  Ship  or  Ammu- 

liti&n,  or  turn  to  the  Enemy  or  Rebel ^  he  flmll  he  punijhed 

•jgitb  Death. 

-XXII-  Soldiers  and  Mariners  owe  all  Refpedt  and  Du- 
•y  to  their  Superior  Officers ;    and  therefore  when  they 
ire  in  Anger,  they  ought  to  avoid  them  :  But  above  all 
lot  to  quarrel  with,  or  give  them  any  provoking  Lan- 
guage: And  therefore  by  the  Law  of  Arms,   a  Soldier 
vho  hath  refilled  his  Captain,  willing  to  chailife  him,  if 
le  hath  laid  hold  on  his  Rod,  is  cafhier'd,  if  he  purpofe- 
y  break  it,  or  laid  violent  Hands  upon  his  Captain,  he 
dies :  *  And  by  the  Lav/s  of  England^  if  any  Perfon  fhall  *  ^p'  ^^!^!' 
prefume  to  quarrel  with  his  fuperior  Officer  he  fliall  fuf-  jie/L^i^^, ^i 
ferfevere  Punifhment ;    and   if  he  ftrikes  him,  he  fhall /;^r.  r«^.  15. 
fuffer  Death,  or  otherwife  as  a  Court  Martial  fhall  adjudge 
the  Matter  to  deferve  f.  f  Artie.  21. 

XXIII.  And  though  Mariners  and  Soldiers  may  have 
juft  Caufe  of  Complaint,  as  that  their  Viftuals  or  Provifi- 
onsare  not  good,    yet  muft  they  not  mutiny  or  rebel, 
whereby  to  diftrad  or  confound  the  whole  Crew,    but 
muft  make  a  civil  and  humble  Addrefs  to  their  Com- 
mander,  that  the  fame  may  be  amended ;    and  if  the 
Cafe  be  fuch,   that  the  Commander  cannot  redrefs  the  ^^'^oft's  Max- 
fame,  by  going  to  Port  to  fupply  the  Exigencies,  without  ^pl]^/g)^,l' 
Detriment  of  the  Fleet,  (as  if  ready  to  engage,  or  the  „on  njakt  cot^^^ 
like)  they  mufl,    like  Men  and  Soldiers,  bear  with  the  tra  remfubli- 
Extremity,    confidering  that  ^tis  better  that  fome  Men  ^^'^• 
ihould  perifh,  nay  the  whole  Crew  in  one  Ship,  than  the 
whole  Fleet ;    nay,  perhaps  the  whole  Kingdom  be  de- 
ftroyed :  And  therefore  if  any  in  the  Fleet  find  Caufe  of  Com-  ■^^'^^^*  22. 
plaint  of  the  Umvholfomenefs  of  his  Visuals ^  or  upon  other 
juft  ground,  he  Jhall  quietly  make  the  fame  known  to  his  Supe- 
rior or  Captain^  or  Commander  in  Chief,  as  the  Occofion  may 
deferve,  that  fuch  prefent  Remedy  may  he  had,  as  the  matter 
w<?y  require  •,  and  the  faid  Superior  or  Commander  is  to  caufe 
the  fame  to  he  prefenily  remedied  accordingly  ;  but  no  Perfon 
^ipon  any  fuch  or  other  Pretence,  fhall  privately  attempt 
to  ftir  up  any  Dillurbance,  upon  pain  of  fuch  fevere  Pu- 
niihment  as  a  Court  Martial  ^\?i\\  think  fit  to  inflid. 

XXIV.  And 

ii.i  J    . 

2P4  iflDf  tf^t  jljabai  ^ilitavv  putt  Book  i 

XXIV.  And  as  the  Law  doth  provide  that  there  be 
Jrtic,  24.        no  wajie  or  fpoil  of  the  King*s  Provijion^  or  imbezzkmmt4 

the  fame '9  fo  likewife  that  care  be  taken  ^  the  Ships  of  Wi 
neither  through  Negligence  or  JVilfulnefs  be  flranded,  fpUt^ 
hazarded^  upon  fever e  Penalties.  In  Fights,  and  when 
great  Fleets  are  out,  there  are  generally  Inftrudlions  ap. 
pointed  for  all  Mafiers^  Pilots^  Ketches-,  Hoyes^  and  Smoiki 
who  are  to  attend  the  Fleet,  and  to  give  them  notice  of 
the  Roads,  Coafts,  Sands,  Rocks,  and  the  like-,  and 
they  have  particular  Stations  allotted  them,  and  Ordm 
given,  that  if  they  fhall  find  lefs  Water  than  fuch  a  pro. 
portion,  they  then  give  a  Signal  as  they  are  direded 
to  give,  and  continue  their  Signal  till  they  are  anfwercd 
from  the  Capital  Ships. 

But  in  time  of  Fight  they  generally  lay  away  their 
head  from  the  Fleet,  and  keep  their  lead  •,  and  if  they 
meet  with  fuch  a  Proportion  of  Water  as  is  within  their 
Pire6lions,  they  are  to  give  fuch  Signal  as  they  receive 
Orders  for,  and  Hand  off  from  the  danger  -,  but  the  wil- 
ful burning  of  any  Ship  or  Magaziite-fiore  of  Powder^  Shif- 
hoat^  Ketchy  Hoy^  or  Veffel,  or  'Tackle^  or  Furniture  thml6 
belonging ,  not  appertaining  to  an  Enemy  or  Rebels  jhall  k 
punijhed  with  Death, 

XXV.  There  are  other  faults  often  committed  by  the 
Crew,  the  which  the  Law  does  punifh,  as  a  quarrdki 

'Jrtic.  23.       on  Ship' hoard ;    ufing  provoking  fpeeehes  tending  te  md 
Jrtic.  28.        quarrel  or  difturbance ;    Murthers  ;    wilful  killing  of  axj 
Artie.  2^.       j^^^  .  Robbery,  Theft-,  and  the  unnatural  Sin  ofSoim 
and  Buggery,  committed  with  Man  or  Beaft  :  all  which,  and 
all  other   Faults  and  Mifdemeanors  are   punifhed  with 
Death,   or  according  to  the  Laws  and  Cufloms  in  fucli 
Artie.  33.       cafes  ufed  at  Sea;  and  when  any  Perfons  have  committed 
any  of  the  Offences  particularly  mentioned  in  the  S'MU 
of  13  Car,  2.  Cap,  9.  and  contained  in  th6  Articles,  of 
any  others,  and  for  the  which  they  fhall  (je  committed, 
Artie  31.       the  Provofl  Martial  is  to  take  them  into  cufiody,  and  mtfvfif 
them  to  efcape^  and  all  Officers  and  Seamen  are  to  be  aid- 
ing and  aflifling  to  Officers  for  th?  deteftipg  ^nd  appre- 
hending of  Offenders. 

Touching  the  Punifhments  that  the  Roman  Gcntm 
ufed  to  their  Soldiers,  when  they  were  at  a  Court  Martid 
found  faulty,   they  were  commonly  proportioned  accord- 

■  •     ■  "         n 

liAP.  xiil.  SDf  ti)t  ^ahal  ^iiitatv  V^tt  205 

I  ^  to  the  Offence  committed  :  Sometimes  they  were  eafy, 
tef'which  fort  were  thofe  which  only  branded  the  Soldier 
•i'ith  dif^race  j    others  were  thofe  that  came  heavy  on  the 
fi'erlbn  or  Body.     To  the  firft  belonged  a  fhameful  dif- 
reing  or  cafhiering  a  Mariner  or  Soldier  from   the 
irmy,  and  generally  Jooked  on  as  a  matter  of  great  dif-  Ig^miniofa 
Urace   which  punifliment  remains  at  this  day  for  offences  ^'^#^* 
! '3  well  in  England^  as  ill  moft  parts.     A  fecond  was  by 
Hopping  of  their  Pay  ;   fuch  Soldiers  which  fuffered  this  Fraudatjiipen^ 
Und  of  muld,  were  faid  to  be  Mre  diruti^   for  that  Ms  ^^-'^ofi^-^nu 
i'lud  diruebalur  in  ffcum^    non  in  Militis  facculum\    the^/^'/^°* 
ji  /hich  is  and  may  at  this  day  be  inflided,  efpecially  on 
( jch  as  fhall  wilfully  fpoil  their  Arms,  and  for  the  like 
3rt  of  offences.     A  third  was  a  Sentence  enjoined  on  a 
oldier  to  refign  np  his  Spear  ;  for  as  thofe  which  had  at- 
hieved  any  Noble  Ad,  were  for  their  greater  Honour  Cenfa  Ha* 
jafta  pur  a  donatio  fo  others  for  their  greater  difgrace  wevQjiaria, 
nforced  to  refign  up  that  Military  Weapon  of  Honour. 
\  fourth  fort  of  punifhment  was,  that  the  whole  Cohort^ 
i^hich  had  loft  their  Banners  or  Standards^  either  in  the 
Melds  or  at  Sea,  were  in  forced  to  eat  nothing  but  Barley- 
jread,  being  deprived  of  their  allowance  in  Wheat,  and 
very  Centurion  in  that  Cohort  had  his  Soldier's  Belt  or 
jirdle  taken  from  him,  which  was  no  lefs  difgrace  among 
hem  than  the  degrading  (among  us)  one  of  the  Order  of 
he  Garter :  for  petty  Faults  they  generally  made  them 
land  bare- footed  before  the  General's  Pavilion,  with  long  GoodnvwAn- 
Polesof  Ten  Foot  in  length  in  their  Hands,  and  fometimes  ^^i-  Rom.foU 
n  the  fight  of  the  other  Soldiers  to  walk  up  and  down  *^7- 
with  Turff,  on  their  Necks,  and  fometimes  carrying  a 
Beam  like  a  Fork  upon  their  Shoulders  round  the  Town. 
The  lafl  of  their  Punifhments  was,  the  opening  of  a  Vein 
Dr  letting  them  Blood   in  one  of  their  Arms,    which 
j  generally  was  infiidled  on  them  who  were  too  hot  and 

(  The  great  Judgments  were,  to  be  beaten  with  Rods^ 
I  which  was  generally  inflicted  on  thofe  who  had  not  dif- 
ij  charged  their  Office,  in  the  fending  about  that  '^ahle  cdi- 
tkd'TeJfera,  wherein  the  Watch- word  was  written,  or 
thofe  who  had  ftoln  any  thing  from  the  Camp,  or  that 
ihad  forfaken  to  keep  Watch,  or  thofe  that  had  born  any 
^  falfe  Witnefs  againft  their  Fellows,    or  had  abufed  their 


2o6  0f  tlje  iSabsi  fi^flitstt  part^  Book 

Bodies  by  Women,  or  thofe  that  had  been  punifKedth 
Lip/,  de  milit.  for  the  fame  Fault,  fometimes  they  were  fold  for  Bo" 
Rom,  lib.  5.     flaves,  beheaded  and  hanged.     But  the  lad,  which  was 
Dialog.  18.     |.|^eij.  Mutinies,   the  puniiliment  fell  either  to  Lots,  ^ 
Tenth,  Twentieth,  and  fometimes  the  Hundredth 
who   were  punifhed  with   Cudgelling  *,    and  with 
Punifliments  thofe  in  England  have  a  very  near  affinir' 
as  cleanfmg  the  Ship,  lofing  Pay,  ducking  in  the  Watt^' 
beaten  at  the  Capfon's-head,  hdifted  up  the  main  Yard  ea 
with  a  Shovel  at  their  Back,  hanged,  and  fhot  to  Deatl 
and  the  like. 

XXVI.  The  Admiral  may  grant  Commiflions  to  infe. 

rior  Vice- Admirals  or  Commanders  in  Chief  of  any  Squj 

dron  of  Ships,  to  affemble  Court  Martials^  confiding  c 

Commanders  and  Captains ^  for  the  Trial  and  Execution  c 

any   of  the  Offences  or  Mifdemeanors  which  Ihali  h. 

2,y  ti.  ().fol  committed  at  Sea  ;  but  if  one  be  attainted  before  tlieir. 

4,  5-  the  fame  works  no  corruption  of  Blood   or  forfeiture  c 

Lands  ;  nor  can  they  try  any  Perfon  that  is  not  in  adl'i 

Service  and  Pay  in  His  Majefty*s  FJeet  and  Ships  of  War 

13  Car,  t.     But  in  no  cafe  where  there  is  Sentence  of  Death  can  tb: 

tap.  9.  Execution  of  the  fame  be  without  leave  of  the  lurik 

miral^  if  the  fame  be  committed  within  the  narrow  St25 

Yet  this  does  not   extend  to  Mutiny,  for  there  in  ths; 

cafe  the  Party  may  be  executed  prefently. 

All  Offences  committed  in  any  Voyage  beyond  tlii 
narrow  Seas  where  Sentence  of  Death  fhall  be  given  up- 
on any  of  the  aforefaid  Offences,  Execution  cannot  V 
awarded  nor  done,  but  by  the  Order  of  the  Commar^r 
in  Chief  of  that  Fleet  or  Squadron,  wherein  Sentence c 
Death  was  paffed. 

XXVIL  The  Judge- Advocate  hath  Power  given, 
the  words  of  the  Statute,^  to  adminifter  an  Oath  inordr 
to  the  Examination  or  Trial  of  any  of  the  Offences  nu: 
tioned  in  the  Statute  oi,  13  Car.  2.  Cap.  9.  and  in  his  ai: 
fence  the  Court  Alartial  hath  power  to  appoint  any  othr 
Perfon  to  adminifter  an  Oath  to  the  fame  purpofe.  Th 
Statute  enlarges  not  the  Power  and  Jurifdicftion  of  the -A- 
miral^  any  further  than  only  to  the  abovementioned  0- 
fences,  in  any  cafe  whatfoever,  but  leaves  his  Authority 
as  it  was  before  the  making  of  this  Statute.  Nor  do. 
give  the  Admiral  any  other  or  further  Power  toenc 

Chap.  XIII.  ©f  ti|c  ^aMl  ^Uitaxv  part  207 

'indpunilh  ^ny  of  the- above-mentioned  Offences,  unkfs 

e6tpe  be  done  upon  the  main  Sea,  or  in  Ships  or  Vef- 

Is  bein<y  and  hovering  in  the  main  Stream  of  great  Ri- 

ers  only  beneath  the  Bridges   of  the  fame  Rivers  nigh 

to  the  Seas,  within  the  Jurifdidion  of  the  JdmiraUy,  and  isRz.cap.'^, 

in  DO  other  place  whatfoever. 

XXVIII.  As  Soldiers  and  Manners  for  the  Honour  and  Stat.^i.EHz, 
Safety  of  the  Realm,  do  daily  expofe  their  lives  and  limbs,  cap.  3.  &Vide 
jo^he  Realm  hath  likewife  provided  for  them,  in  cafe  '3»  ^^'^i^\ 
Aey  furvive  and  fhould  prove  difabled  or  unfit  for  Service,  ^\^|  l\  2,  g. 
areafonableand  comfortable  maintenance  to  keep  them  v  ^.c.6.  where- 
ttje  which  the  Juflices  of  the  Peace  have  povi^er  yearly  in  by  Provifion 
their  Eafier  Sejfwns  to  raife  by  way  of  a  Tax,  for  a  weekly  ^u"^w\3^%- 
^r^ief  of  maimed  Soldiers  and  Mariners.  and  Orphlns, 

The  maimed  Soldier  or  Mariner  mufb  repair  to  the 
Jmjurer  of  the  County  where  he  was  prefled,  if  he  be 
able  to  travel  ;  if  he  be  not,  then  to  the  I'reafurer  of  the 
County  where  he  was  born,  or  where  he  laft  dwelt  by  the 
Ipace  of  Three  Years ;  but  if  he  prove  unable  to  travel, 
then  to  the  freafurer  of  the  County  where  he  lands. 

He  muft  have  a  Certificate  under  the  chief  Commander, 
or  of  his  Captain,  containing  the  Particulars  of  his  Hurt 
and  Services. 

The  Allowance  to  one  not  having  been  an  Officer,  is 
not  to  exceed  Ten  Pounds  per  Annum  j 

Under  a  Lieutenant  — -.  15 
A  Lieutenant ^ 20 


Till  the  Mariner  arrives  at  his  proper  ^reafurer^  they 
are  to  be  relieved  from  'Treafurer  to  Treafurer^  and  when 
they  are  provided  for,  if  any  of  them  fhall  go  a  begging 
or  counterfeit  Certificates,  they  fhall  fuffer  as  commoa 
Rogues ;  and  lofe  their  Penfions  :  Over  and  above  this 
Provifion,  His  Sacred  Majefty  hath  provided  a  further 
Supplement  for  his  maimed  Mariners  and  Soldiers  dif- 
abled in  the  Service,  which  is  ilTued  out  at  the  Cheft  at 
^atbam^  and  conftantly  and  duly  paid  them  ;  and  for  his 
Commanders,  Officers,  and  others  that  ferved  abroad, 
"C,  of  his  Royal  Bounty,  hath  given  to  thofe  that  bear 
JeCharader  of  War,  and  purchafe  the  fame  by  their 
fiddity  and  Valour,  a  pigus  Bounty  called  Smart-Money, 


2o8  £Df  tf)Z  iSaftal  ^ilitat^  pan.    Book  I 

over  and  above  their  Pay  ;    and  laid  the  Foundation  o( 

an  Hofpital  at  Cbelfea,  in  his  Life-time,  which  his  not' 

Sacred  Majefty  hath  compleated,  and  endowed,  both  fof 

'       Beauty  and  Magnificence,  excelling  all  in  Chrifiendom. 

Nor  muft  we  forget  that  noble  Hofpital  at  Grui^. 

wkb,  which  for  a  further  Encouragement  for  Marincii 

maimed  or  worn  out  mth  Age  or  any  other  Infirmity  in 

the  Sea  Service,  our  late  mod  glorious  Deliverer  King 

William  the  Third,  was  gracioufly  pleafed  to  give  as  j 

Royal  Bounty  a  ftately  Palace  at  Greenwich  for  an  Hof. 

pital,  which  is  fince  fo  enlarged  as  to  receive  a  thoufand 

Seamen,  and  when  compleat  will  be  able  to  receive  Ev» 

hundred  more  5    which  for  Statelinefs  and  Grandeur,  1 

may  venture  to  fay,  will  exceed  any  thing  of  its  Kind  that 

Chrijlendom  can  produce. 

And  it  muft  not  be  omitted  a  very  laudable  Under- 
taking is  very  lately  fet  on  Foot,  it  being  a  generous  and 
voluntary  Subfcription  by  all  the  Officers  of  the  Navy, 
allowing  Three-pence  in  the  Pound  to  be  deduded  ogt 
of  their  Wages  for  the  Maintenance  of  the  Widows  and 
Orphans  of  fuch  Commiffion  and  Warrant- Officers,  vb) 
died  fince  the  30th  of  Auguft  1732,  from  which  time  it 
commences  ;  which  his  prefent  Majefty  King  Gmit  II. 
was  gracioufly  pleafed  to  encourage  by  the  granting  iii: 
Royal  Commiffion,  bearing  Date  the  30th  of  Juguft  1732, 
by  which  a  comfortable  Maintenance  is  fecured  by  die 
following  Allowance. 

r  Captain  45  /.  per  Annum, 

1  Lieutenant        7 
Widow  of  the  ^Af^/(?r  J  ^^ 

I  All  other  War-  1 
L  rant  Officers   j 

The  greateft  aflurance  of  a  Fleet  is  in  the  prudent  Go- 
vernment of  the  Admiral ;  the  greateft  weakning  of  itiJ 
by  difcontent,  which  generally  proceeds  from  two  things, 
want  of  good  Vidluals  at  Sea,  and  Pay  when  come  home, 
thefe  are  the  poor  Mariners  Aqua  vita  ;  but  want  of  them 
is  fuch  an  Aquafortis  as  eats  through  all  manner  of D*| 
and  Obedience  :  That  Prince  that  expedls  to  be  wl 
ferved  and  obeyed,  (efpecially  by  an  Englijhman)  ^ 
take  care  that  he  fuffer  not  a  greater  Power  iri  his  Flcc^ 

in  AT.  XIII.  jflDf  tljei^abai  WiUtavv  part  2^0 

jhari  his  own  ;    this    Commander   is   Neceflity,    which 
bfcaks  Difcipline  at  Sea,  and  creates  Difcouragement  ar 


XXIX.  The  Wifdom  of  the  Romans  was  mightily  to  FJ^fg  Salmuth, 
be  commended,  in  giving  of  Triumphs  to  their  Generals  ir.Pandr.Leg, 
^  their  Return,  of  which  they  had  various  forts  ;  but  ^f^^^y^^P"-^^* 
|ic*greatefl:  was  when  the  General  rid  in  his  Chariot,  ^^^/^  ^^-^^ 
Iflorned  and  crowned  with  the  Vidlorious  Laurel,  the  Haiicamaf, 
fMors  with  the  beft  of  the  Romans  meeting  him,  his  ^-f'^-  s* 
jbldiers  (efpecially  thofe  who  by  their  Valour  had  puN 
^afed  Coronets,  Chains,  and  other  Enfigns  of  reward 
4br  their  Condud  and  Courage)  following  him  :  But 
what  alas !  could  thefe  to  the  more  fober  reprefent  any 
other  but  horror,  fmce  the  Centers  from  whence  the  Lines 
were  drawn,"  could  afford  nothing  but  Death,  Slaughter 
and  Defolation  on  thofe  v/ho  had  the  Souls  and  Faces  of 
Men ;  and  if  it  were  pofTible,  that  the  Blood  which  by 
their  Commiflions  was  drawn  from  the  fides  of  Man^ 
kind,  and  for  which  they  made  thofe  Triumphs,  could 
have  been  brought  to  Rome^  the  fame  was  capable  of 
making  of  a  Source  great  as  their  Tikr  -,  but  Policy  had 
need  of  all  its  Stratagems  to  confound  the  Judgment  of 
a  Soldier  by  excefTive  Praifcs,  Recompences  and  Tri- 
umphs, that  fo  the  Opinion  of  Wounds  and  wooden  Legs 
might  raife  in  him  a  greater  Elleem  of  himfclf,  than 
il  he  had  an  entire  Body.  To  allure  others,  fomething 
alfo  muft  be  found  out  handfomly  to  cpver  w^ounds  and 
affrightments  of  Death ;  and  without  this  Cc^far  in  his. 
Triumph,  with  all  his  Garlands  and  Mufick,  would  look 
but  like  a  Victim  •,  but  what  forrow  of  Heart  is  it  to 
fee  palTionate  Man,  a  Ray  of  Divinity,  and  the  Joy  of 
Angels,  fcourged  thus  with  his  own  Scorpions  ?  The 
cholericknefs  of  War  (whereby  the  luftful  heat  of  fo 
many  Hearts  is  reduced)  ilirs  up  the  Lees  of  Kingdoms 
ind  Slates^  as  a  Tempeft  doth  weeds  and  flimy  fediment 
from  the  bottom  to  the  top  of  the  Sea,  which  afterwards 
driven  to  the  Shore,  together  with  its  foam,  there  co- 
vers Pearls  and  precious  Stones  :  and  though  the  Can- 
non Ihould  feem  mad  by  its  continual  firing,  and  the 
Sword  reeking  hot  by  its  daily  flaughters,  yet  no  good 
rnan  doubts  but  they,  even  they,  fball  weather  out 
thofe  Storms,    and  in  the  midft  of  thofe  merciiefs  In- 

O  ftruments 


SDf  Salutations?.         Booki, 

ftrumcnts  find  an  inculpata  Tutela,  who  love  Juftice,  ex- 
ercife  Charity,  and  put  their  Truft  in  the  Great  Governir 
ef  all  things. 

CHAP.    XIV. 

M  ^alutattonjs  i>v  %Wv^  of  Jsaar,  sk 

I.  Of  Salutations  paid  in  all  Ages 
as  an  undoubted  Mark  of  So^e- 
raignty  of  this  Empire. 

II.  Of  thofe  Seas  njjhere  this  Right 
is  to  be  paid  to  the  King  ^  Eng- 
land'.f  Flag. 

III.  In  ^vhai  manner  the  King  of 
England  holds  this  Right y  and  by 
ixjhom  to  be  paid. 

IV.  Of  thofe  that  (hall  negleB  or  re- 
fife  to  do  the  fame,  ho'w  punijhed 

and  dealt  ^withal. 

V.  Where  His  Majejly  of  Great 
Britain^  Ships  are  to  Jlrike  their 
Flag,  andnxjherenot. 

\l.  Of  the  fainting  of  Ports ^  Ca- 
Jiles,  Forts,  hoiv  the  fame  is  to  he 
done,  and  on  <vohai  Therms. 

VII.  Of  Ships  of  War  their  faluting 
their  Admiral  and  Commanders  in 

VIII.  Of  Amhaffadors,  Dukes y  No- 
ble men,  and  other  Perfons  of  po- 
lity, hoiju  to  be  faluted  coming 
Aboard  and  landing. 

IX.  The  Admiral  cf  any  Foreign  Na- 

tion,    if  met  nvithal,  hoio  la  It 
faluted  and  anfn,vered. 

X.  Of  the  Men  of  War  or  Sliipef 
Trade  of  any  Foreign  Nations,  ft- 
luting  His  Majejifs  Ships  of 
War,  honx)  to  be  anfnxiered. 

XI.  Of  the  faluting  of  His  Mijiffi 
ozvn  Forts  and  Cajlles,  and  whr. 
the  Salute  ceafes. 

XII.  Of  the  ObjeSiion  that  ferny  it 
be  made  againji  the  Necefuj  of 
fuch  Salutations. 

XIII.  Wh^  Kingdoms  and  Sttilis 
attribute  the  EffeBsy  mt  thtcaujt 
of  Rights,  to  prefcription. 

XIV.  That  Kingdoms  and  Refai- 
licks   ought   not    to    be  difordtru 

for  the  Defea  of.  Right,  infri- 
fumption,  and  the  ohjeSimk^i 
XII .  §,  anfiuered. 

XV.  The  Inconvenieng  of  War,  iJii 
the  caufes  jujiifying  the  f am. 

XVI.  Of  the  caufes  notjupfiililtl'! 

XVII.  Of  Moderation,  andthtvii- 
lity  of  Faith  and  Peace. 

I.  TT  is  evident  by  what  hath  been  faid,  that  the  in- 
X  lijh  Seas.,  before  the  Roman  Conq^ueft.,  ever  belonged 
to  the  IJle  of  Great  Britain^  they  always  claiming  and  en- 
joying the  fole  Dominion  and  Soveraignty  of  the  fame, 
which  afterv/ards  accrued  to  the  Romans  by  Conqueft, 
and  from  them  tranflated  with  its  Empire  to  the  fucceed- 
ing  Saxcn^  Banijh^  and  Norman  Kings  >  and  in  the  Reigns 

of  thofe  Princes  there  were  always  fomc  marks  of  Sove- 

Chap.  XIV.     M  ^allttatlOtt^*  1 1 1 

raignty  paid,  wherein  the  right  of  the  fame  was  evinced 
and  acknowledged. 

II.  Now  thofe  Seas  in  which  this  Salutation  or  Duty 
of  the  Flag  are  to  be  paid,  are  the  four  circumjacent  Seas, 
in  which  all  VeiTels  whatfoever  are  to  pay  that  Duty,  ac- 
cording to  the  Cuftom  of  the  fame,  and  the  Ordinance  of 
King  John.  How  far  this  Right  is  payable,  appears  in 
the  Fourth  Article  in  the  Peace  between  His  Majejiy  and 
the  States-General  of  the  United  Provinces^  in  thefe  words  : 

^ That  whatever  Ships  or  Vejfels  hi^Ionging  to  the 

[aid  United  Provinces^   whether  Vejj'els  of  War  or  other j 

whether  fingle  or  in  Fleets^  fhall  meet  in  any  of  the  Seas  frora 

Cape  Finil^erre  to  the  middle  point  of  the  Land  Van  Staten 

in  Norway,  with  any  Ships  or  Veffels  belonging  to  His  Ma- 

jefly  of  Great  Britain,  whether  thofe  Ships  he  Jingle  or  in 

great  number^    if  they  carry  His  Majejiy  of  Great  Britain^ 

Flag  or  Jack^  the  aforefaid  Dutch  Vefjels  or  Ships  fhall 

firike  their  Flag  and  lower  their  Top- f ail ^  in  the  fame  man- 

ner^  and  with  as  tnuch  refpe5l  as  hath  at  any  time^  or  in  any  ) 

^lace^   been  formerly  pra^ifed^  towards  any  Ships  of  His 

Majejiy  of  Great  Britain,  or  his  Predecefj'ors^   by  any  Ships 

c//^^  States- General,  or  their  Predecefjors. 

III.  Now  His  Majefly  holds  not  this  Salutation  or  Re* 
fpe(^,  by  virtue  of  the  League  of  the  Article,  but  as  the 
fame  is  a  RIGHT  inherent  to  the  Empire  of  Great 
Britain  -,  and  therefore  in  the  firfl:  part  of  the  Article  it 
is  declared  in  thefe  Words  : 

— — .  That  the  aforefaid  States-General  of  the  United 
Provinces^  in  due  acknowledgment  on  their  part  of  the  King 
of  Great  Britain^  RIGHT  to  have  his  Flag  refpeEied 
in  the  Seas  hereafter  mentioned,  fhall  and  do  declare,  and 
agree. . 

Now  this  Right  extends  and  fubjeds  all  Nations  what- 
foever that  fl:iall  pafs  through  thofe  Seas,    and  between 
thofe  Places  meeting  with  any  of  His  Majcily's  Ships  of  S^lden  Mare 
War,  bearing  his  Flag,  Jack,  or  Cognizance  of  Service,  ^.^"y«^  ^■^* 
to  ftrike  their  Top-fail,    and  take  in  their  Flag  in  ac-  ''  ^'^^'  ^^* 
knowledgm^nt  of  His  Majefif^  Soveraignty  in  thofe  Seas ; 
pnd  if  any  fhall  refufe  to  do  it,  or  offer  to  refifl,  they 
niay  be  compelled  vi,  &  manu  forti,  for  His  Majejlf^ 
Honour  is  by  no  means  to  receive  the  leaft  Diminution. 

O  2  IV.  If 

IV.  If  therefore  any  of  His  Majefty\  Subjects  fhouldbe 
fo  negligent  or  forgetful  to  pay  that  Obedience,  when  it 
may  be  done  without  lofs  of  the  Voyage,  they  are  ta  be 
feized  on,  and  brought  to  the  Flag,  to  anfwer  the  Con«i 
tempt,  or  elfe  the  Commander  may  remit  the  Name  of 
the  Ship,  Commander  or  Mafter^  as  alfo  the  Place  from 
whence,  and  the  Port  to  which  fhe  fhall  be  bound,  to  the 
Admiral ;  however,  before  Ihe  is  difmifled,  ihe  muft  pay 
the  Charge  of  the  Shot  that  her  Negligence  or  Forgetful 
nefs  occafioned,  and  afterwards  may  be  indicted  for  the 
fame,  and  feverely  puniflied.  ^i 

V.  In  His  Majefty's  Seas,  none  of  his  Ships  of  War 
are  to  (Irike  to  any  *,  and  in  no  other  Part  is  any  Ship  of 
His  Majefty  to  flrike  her  Flag  or  Top-fail  to  any  Fo- 
reigner, unlefs  fuch  Foreign  Ship  fhall  have  firft  ftrud, 
or  at  the  fame  time  have  flruck  her  Flag  or  Top-fail  to 
His  Majefly's  Ships. 

VI.  But  if  any  of  the  King  of  £;/^tei's  Ships  of  War 
fhall  enter  into  the  Harbour  of  any  Foreign  Prince  or 
State,  or  into  the  Road  within  fhot  of  Cannon  of  feme 
Fort  or  Caftle,  yet  fuch  Refpe6l  mufl  be  paid,  as  is 
ufually  there  expedted,  and  then  the  Commander  is  to  fend 
afhore  to  inform  himfelf  what  return  they  will  make  to 
his  Salute  *,  and  that  if  he  hath  received  good  AfTurance, 
that  His  Majefly's  Ships  fhall  be  anfwered  Gun  for  Gun, 
the  Port  is  to  be  faluted,  as  is  ufual  ;  but  without  affurancc 
of  being  anfwered  by  an  equal  number  of  Guns,  the  Port 
is  not  to  be  faluted  :  And  yet  in  that  very  refped  before 
the  Port  is  to  be  fliluted,  the  Captain  ought  to  inform 
himfelf,  how  Flags  (of  the  fame  quality  with  that  he 
carries)  of  other  Princes  have  been  faluted  there,  the 
which  is  peremptorily  to  be  infifled  on,  to  be  faluted  with 
as  great  Refped  and  Advantage  as  any  Flag  (of  the  fame 
quality  with  the  Captains)  of  any  other  Prince  hath  been 
faluted  in  that  place. 

VII.  A  Captain  of  a  Ship  of  a  fecond  Rate,   being 

neither  Admiral,  Vice- Admiral,  nor  Rear- Admiral,  at 

his  firfl  coming  and  faluting  his  Admiral  or  Commarider 

in  Chief,  is  to  give  Eleven  Pieces,  his  Vice- Admiral  Nine, 

and  his  Rear- Admiral  Seven,  and  the  other  proportiona- 

bly  lefs  by  two,  according  to  their  Ranks  -,  but  the  Com- 

Artic.  58.       mander  or  Captain  of  a  Ship  is  not  to  falute  his  Admiral 



Chap: XIV.    ©f  ^altttatiOttSf*  ^313 

(St  Commander  in  Chief,  after  he  had  done  it  once,  ex-r 
cept  he  hath  been  abfent  from  the  Flag  Two  Months. 

VIII.  When  a  Ship  of  the  fecond  Rate  Ihall  carry  any 
AmbafTador,  Duke  or  Nobleman,  at  his  coming  aboard 
he  is  to  give  Eleven  Pieces,  and  at  his  Landing  Fifteen  ; 
and  when  he  fhall  carry  a  Knight,  Lady  or  Gentleman 
of  Quality,  at  their  coming  aboard  he  is  to  give  feven, 
and  at  their  Landing  eleven  ;  and  the  other  Ships  are  to 
give  lefs  by  two,  according  to  their  Ranks  and  Number, 
of  Ordnance. 

IX.  When  an  Admiral  of  any  Foreign  Nation  is  met 
with,  he  is  to  be  anfwered  with  the  like  Number  by  aJI 
the  Ships  he  fliall  falute  ;  if  a  Vice- Admiral,  the  Admir 
ral  is  to  anfwer  him  with  twelve  lefs ;  but  the  Vice-Ad- 
miral  and  Rear-Admiral,  and  as  many  of  the  reft  as  he 
(hall  falute,  fhall  give  him  the  like  number  ;  if  a  Rear- 
Admiral,  then  the  Admiral  and  Vice- Admiral  to  anfwer 
him  with  two  lefs  ;  but  if  he  fhall  falute  the  Rear-  Ad- 
miral or  any  other,  they  are  to  anfwer  him  in  the  likq 

X.  When  a  Man  of  War  or  Merchant  Man  of  ano- 
ther Nation,  or  of  our  own,   falutes  any  of  the  King's 
Ships,  he  is  to  be  anfwered  by  two  lefs. 
?''XL  When  any  of  the  Captains  of  his  Majefty's  Ships 
fliairhave  occafion  tq  falute  any  of  the  King's  Caftles,  he 
is  to  give  two  Guns  lefs  than  they  are  diredled  to  give 
up6n  faluting  their  Admiral  or  Commander  in  Chief,  as 
aforefaid  :  But  this  extends  only  to  time  of  Peace  •,  for  if 
War  is  begun,  no  Guns  ought  to  be  fired  in  Salutes,  un- 
lefs  to  the  Ships  or  Caftles  of  fome  Foreign  Prince  or 
State  in  Amity. 

XII.  Thofe  Duties  or  Obligations  being  laid  on  Coni^ 
manders,  they  confift  of  two  parts  ;  the  one  is  that  antienX 
prefcription,  which  the  Crown  of  England  chims  by  virtue 
of  the  Soveraignty  of  that  Empire  •,    the  other  is  but  that 
Refpedt  which  is  paid  as  vifible  Marks^  of  Honour  and 
Efteem,  either  to  Kingdoms  or  Perfons  publickor  private^ 
to  whom  thefe  feveral  Commands  are  to  be  obferved  y 
and  yet  in  thefe  which  are  both  innocent  and  harmlefs 
c>f  thernfelves,  we  want  not  thofe,  who  being  empty  of 
all  that  may  be  called  good,  want  not  malice  to  ftart  up. 
^ordsj  Wfperefore  Jhoujd  the  Lives  of  Men^  n'cn  Chriftiaix 

2 14  jSDf  ^altttatfonjl*        b  o  o  k  i 

Mefjy  he  expofed  to  death  and  Jlaughter  for  Jhadows  (as  they 
call  them)  the  Right  of  Salutation  or  Compliment  bein* 
no  other  in  their  Opinion. 

XIII.  Admitting  therefore  that  the  Evidence  of  ori- 
ginal Compadls  and  Rights  ftand  at  fuch  remote  diftances 
from  us,  that  they  are  hardly  difcernabje,  and  that  the 
principal  of  Civil  things,  as  well  as  natural,  is  fought  for 
ina'  Chaos  or  Confufion  ;  fo  that  the  Evidence  of  antient 
fad:s  vefligia   nulla  reirorfum^    there  being  no  infallible 
marks  of  their  pre-exiftence  (one  ftep  doth  fo  confound 
and   obliterate  another)    and  that  time  itfclf  is  but  an 
imagination  of  our  own,    an  intentional,  not  a  real  me&- 
fure  for  adlions,  which  pafs  away  concomitantly  with  that 
meafure  of  time  in  which  they  were  done,  for  which  rea- 
fon  we  talk  of  antient  things,  but  as  blind  Men  do  of  Co- 
Coh  on  Lit'    lours  :   Notwithftanding  prefcription  is  fuppofed  by  mod 
ileton,  fol.       ^^  j,q|^  ^^^  j-^^^  ^^  Evidence,  that  as  they  fay,  it  ought 
*^4»      jQ  filence  all  Counterpleas  in  all  Tribunals,  and  by  the 
prefent  allowance  which  is  indulged  to  it,  it  either  proves 
a  good  or  cleanfes  a  vitiated  Title  *,    and  hath  this  power 
in  the  civil   Conftitution  of  the  World,    that  for  Quiet- 
nefs  fake  what  it  cannot  find,  we  grant  it  a  power  to 

And  if  we  examine  all  this  ftridly  at  the  two  great 
Tribunals,  the  external  and  the  internal,  and  argue  the 
Jus  of  it,  as  Statefmen  and  Lawyers  do,  we  can  then 
raife  the  Argument  of  it  no  higher  in  the  external  or 

temporal  Court,  than  only  this T^hat  it  is  very  con- 

'uenient  it  floould  have  the  effe5fs  of  Right  \  lefl  Proper  tits 
and  Dominion  of  things  fjould  be  uncertain^  and  by  the  ap- 
parent negligences  of  Time  Owner  sfiould  be  punifhed  \  and  that  may  have  a  fpeedy  end  :  States  looking  more 
after  publick  repofe  and  quiet  than  after  ftrid  Virtue ;  and 
-more  after  thofe  things  which  are  ad  alterum^  than  that 
which  concerns  a  Man's  own  felf  •,  for,  fay  they,  ^be 
Deonim  vjju-  Gods  look  well  enough  after  their  own  Injuries  :  States  mcd- 
riaDoicur^,  ^j^  ^^^  £q  j^^^^j^  ^j^j^  gj.^^^  Prodigalities  as  in  petty  Lar- 
cenies, our  chief  eft  Liberty^  Privileges^  or  Prerogative  in 
this  Worlds  conjifting  only  in  an  uncontroulable  Rights  which 
we  have  to  undo  ourfelves^  if  we  pleafe.  Certainly  if  wc 
plead  at  the  other  Tribunal,  as  confcientious  Lawyers,  we 

mufl  give  our  ultimate  Refolution  out  of  that  Law,  ^^ 


:1  Chap.  XIV.    £)f  ^alUfattOUSf*  215 

inciditur  non  are^  fed  animis  :  which  is  not  engraved  in 
Tables  of  Brafs,  but  in  the  Tables  of  our  Souls  ;  for  the 
Rule  of  Law  tells  us,  ^^  principio  vitiantur^  ex  poft 
d  fa^o  reconvalefcant^  and  that  prefcription  or  ufu-caption 
i  (which  is  but  the  lapfe  of  fo  much  Time)  hath  the  power 
H  to-make  /^r^«^  ^  Right',  yea,  to  change  the  morality  of 
I  an  Action,  and  turn  Qiiantity  into  Quality  :  Upon  the 
\  Refult  of  all  which  taking  for  granted,  what  thofe  Itub- 
(  born  People  do  hold,  that  inftead  of  being  a  right,  or  a 
certain  Caufe  or  Proof  of  it,  it  only  makes  a  Ihadow  or  an 
opinion  of  right. 

XIV.  And  when  we  have  taken  thofe  People  by  the 
hand,  and  with  eagernefs  run  with  them  to  the  very 
bottom  and  end  of  the  line,  and  there  find  nothing,  we 
are  but  in  Pompey^s  Aftonifhment,  when  after  his  Con- 
qut&:of  jferufalemy  when  he  had  with  fuch  reverence  and 
curiofity  vifited  the  San5fum  San5forum,  and  found  no- 
thing there  but  a  pair  of  Candleflicks  and  a  Chair,  in 
which  there  was  no  God  fitting  ;  yet  for  all  this  Miftake, 
he  would  not  (as  Jofephtis  faith)  diforder  or  rob  the  Tem- 
ple, which  he  took  by  force  of  Arms,  becaufe  the  very  Machiavelh 
Opinion  of  Religio7ihathforaething  of  Religion  *,  (which  made  I^^^courfcs, 
Jacob  accept  oi'  La  ban's  Oath  by  an  Idol)  fo  ought  not  we  ^^^"  ^^* 
for  defecl:  of  giving  the  Caufes  of  the  Inception  of  Pre- 
fcription, or  of  the  Right  in  Prefcription  diforder  a 
State,  or  be  the  occafion  of  fetting  of  two  Nations  at  en- 
mity ;  nay,  though  in  Confcience  we  are  fatisfied  that  it 
contains  but  the  Opinion  or  Shadow  of  Right :  And  as  to 
the  involving  the  Lives  of  the  Innocent,  there  is  no  fuch 
thing  in  the  matter,  for  there  is  not  required  any  thing 
which  they  do  not  owe,  nor  are  they  defigned  to  Death  -, 
but  if  the  Caufe  be  fuch,  that  they  that  are  Innocent  muft 
perilh,  that  is,  be  expofed  to  Death  by  their  Rulers  be- 
caufe they  obftinately  will  not  yield  that  which  is  right, 
but  will  involve  the  Lives  of  their  innocent  Subjedls  by 
Force,  to  defend  that  which  is  wn'ong,  fuch  guilty  Go- 
vernors muft  anfwer  for  the  Defe6t  of  their  own  evil 
Anions  :  on  the  other  hand,  there  can  be  no  doubt  madej  ^. 

but  he  that  hath  an  undoubted  Right,  being  a  Soveraign,  •• 

the  Subjects  partake  in  the  fame,  and  the  Indignity  offer- 
ed to  him,  they  immediately  become  Partakers  in  the  Suf- 
^^ring,  for  the  Satisfaction  of  which  they  may,  yea,  are 

O  4  obliged 

2i6  flDf  ^aiutattcnis*         Booki 

obliged  both  by  the  Law  of  God  and  Nations  to  feek 
Reparation  Cif  their  Prince  fhall  command)  viy  (^  mm 
forti^  by  the  Hazard  of  their  Blood  and  Lives, 

XV.  On  the  other  Hand,  as  War  introduces  the  great- 
eft  of  Evils,  viz.  the  taking  away  of  Men's  Lives,  and 
that  which  is  equivalent  to  Life  ;  fo  right  Reafon  and 
Equity  tells  us,  that  it  ought  not  to  be  undertaken  without 
the  greateft  Caufe,  which  is  the  keeping  of  our  Lives,  and 
that  without  which  our  Lives  cannot  be  kept  \  or  if  they 
fhould  be  kept,  yet  they  would  not  be  of  any  value  to  us, 
feeing  there  may  be  a  Life  worfe  than  Death,  even  Captj. 
vity  •,  wherefore  as  we  are  forbidden  to  go  to  Law  for  a 
little  Occafion,  fo  we  are  not  to  go  to  War  but  for  the 
greateft.  Now  thofe  things  that  are  equivalent  to  a  Man's 
Life,  are  fuch  to  whom  Almighty  God  appointed  the  fame 
equal  PunifhnPient  as  to  Murderers,  and  fuch  were  break- 
ers into  Houfes,  breakers  of  Marriage-fidelity,  Publilh- 
^rs  of  falfe  Religion,  and  thofe  who  rage  ia  unnatural 
Lulls,  and  the  like. 

However,  before  Men's  Perfons  or  Goods  are  to  be 
invaded  by  War,  one  of  thefe  three  Conditions  is  re- 

1.  NeceiTity,  according  to  the  tacit  Contraft  in 
the  firft  dividing  of  Good,  as  hath  been  already  ob« 

2.  A  Debt. 

3.  A  Man's  ill  Merits,  as  when  he  doth  great  "Wrong, 
or  takes  part  with  thofe  who  do  it. 

Againft  which  if  any  thing  is  committed.  War  may  be 
commenc'd,  nor  is  the  fame  repugnant  to  the  Laws  of  Na- 
ture i  that  is,  whether  the  thing  may  not  be  doneunjuft- 
ly,  which  hath  a  neceffary  Repugnance  to  the  rational  and 
focial  Nature  ;  amongft  the  firft  Principles  of  Nature, 
there's  nothing  repugnant  unto  War  ;  on  the  other  hand 
there  is  much  in  favour  of  it,  for  both  the  end  of  War, 
the  Confervation  of  Life  and  Members,  and  the  keeping 
and  acquiring  of  things  ufeful  unto  Life,  is  moft  agreeable 
to  thofe  Principles  •,  and  if  need  be,  to  ufe  Force  to  that 
\  Purpofe  is  not  difagreeable,  fince  every  living  thing  hath 

\>y  the  Gift  of  Nature  S.rength,  to  the  end  it  may  be  able 
^^l^:^'  to  help  and  defend  itfelf.  Befides,  Reafon  and  the  Nature 
^"  yZ'C^  pf  Society^  inhibits  not  all  Force,  but  that  which  isrepug* 


c H  AF.  XIV.  £)f  &a\utatiom.  zij 

^tQ-Society,  that  is,  which  depriveth  another  of  his 
Right  *,  for,  the  end  of  Society  is,  that  every  one  may  en- 
oY  his* own  ;    this  ought  to  be,  and  would  have  been, 
though  the  Dominion  and  Property  of  PofTeflions   had 
not  been  introduced  ;  for  Life,  Members  and  Liberty 
\vbuki  yet  be  proper  to  every  one  ;  and  therefore  with- 
out Injury  could  not  be  invaded  by  another  :   To  make 
ufeofwhat  is  common,   and  fpend  as  much  as  fuffices 
Nature,   would  be   the  right  of  the  Occupant,    which 
Right  none  could  without   Injury  take  away.     And  this 
is  proved  by  that  Battle  of  Abraham  with  the  four  Kings, 
who  took  Arms  without  any  CommifTion  from  GOD, 
and  yet  was  approved  by  him  ;    therefore  the  Law  of 
Nature  was  his  Warrant,    whofe  Wifdom  was  no  lefs 
eminent  than  his  Sandlity,    even  by  report  of  Heathens, 
Berofus  and  Orpheus  -,    nor  is  the  fame  repugnant  to  the 
Hebrew  Law  or  Go/pel^  as  the  fame  is  moft  excellently 
proved  by  the  Incomparable  Grotius*.  *  uh,  i. 

XVI.  On  the  other  hand,  the  Fear  of  uncertain  Dan-  cap.  i. 
ger,  as  building  of  Forts,  Caftles  and  Ships,  and  the  like, 
though  the  former  be  on  Frontiers,  the  refufing  of  Wives 
(when  others  may   be  had)  the  changing  of  Countries 
either  Barren   or   Moorifh  for  more  fertile  or  healthful 
which  may  juftly  be  done  ;    as  in  the  Cafe  of  the  old 
Germans^  as  Tacitus  relates  :  So  like  wife  to  pretend  a  Ti- 
tle to  a  Land,  becaufe  it  was  never  found  out  or  heard  of 
before  ;   that  is,  if  the  fame  be  held  by  a  People  that 
are  under  a  Government  ;    nay,  though  the  Government 
be  wicked  or  think  amifs  of  G  O  D,  or  be  of  a  dull  Wit  ; 
for  Invention  is  of  thofe  things  that  belong  to  none  •,  for 
neither  is  moral  Virtue,  or  Religion,  or  Perfedion  of 
Underftanding  required  to  Dominion  ;  but  yet  if  a  new  yisior.  dehd. 
Place  or  Land  ihall  be  difcovered,  in  which  are  People  rel.  i.  «.  31. 
altogether  deftitute  of  Reafon,  fuch  have  no  Dominion, 
but  out  of  Charity  only  is  due  unto  them  what  is  necelTary 
for  Life  ;  for  fuch  are  accounted  as  Infants  or  Mad-men, 
whofe  Right  or  Property  is  transferred,  that  is,  the  ufe  yi^or  ie  Jurt 
of  the  fame,  according  to  the  Law  of  Nations  ;  in  fuch  BelU^  ».  5, 
Cafes  a  charitable  War  may  be  commenc'd.  ^»  7>  ^* 

XVII.  To  prevent  all  the  fad  Calamities  that  muft 
inevitably  follow  the  ungoverned  Hand  in  War,  Faith 
wuft  by  all  Mcaps  be  laboured  for  \  for  by  that,  not  only 


2i8  sot  ^aintatiom. 

every  Common-Wealth  is  conferved,  but  aJfo  that  greater 

Society  even  of  Nations,    that  once  being  taken  away 

then  farewel  Commerce,    for  that  muft  be  then  taken 

away  from  Man  ;    for  Faith  is  the  mod  Sacred  thing  that 

isfeated  in  the  Bread  of  Man,  and  is  fo  much  morerelj. 

gioufly  to  be  kept  by  the  fupreme  Rulers  of  the  World 

by  how  much  more  they  are  exempted  from  the  Punilh' 

ment  of  their  Sins  here  than  other  Men  :    Take  away 

Faith,  and  then  Man   to  Man  would  be  (as  Mr  Hokk 

obferves)    even  Wolves  •,    and  the   more  are  Kings  to 

embrace  it,  firft  for  Confcience,  and  then  for  Faith  and 

Credit  fake,  upon  which  depends  the  Authority  of  their 

Government.     The  AmbafTadors  of  Juftinian  addrefled 

Procopius  Per-  their  Speech  to  Chofroes  after  this  manner  :  Did  we  mt fee 

'^^^'  ^'  you  here  wi lb  our  own  Eyes^  and  pronounce  thofe  Words  iti 

your  EarSy    we  fhould  never  have  believed  that  Chofroes  tk 

Son  ^^fCabades,  would  bring  his  Army^  and  enter  forcibly 

into  the  Roman  Bounds^    contrary  to  his  Leagues^  the  on!) 

Hope  left  to  thofe  that  are  affli5fed  with  War  ?  For  what  is 

this,  but  to  change  the  Life  of  Men  into  the  Life  of  wild 

Beafts  ?  Take  away  Leagues^  and  there  will  be  eternal  Wan^ 

and  Wars  without  end  will  have  this  Effe5fy  to  put  Mm 

hejides  themfelves,  and  divefi  them  of  their  Nature,     If  then 

a  fafe  Peace  may  be  had,  it  is  well  worth  the  releafmgof 

all  or  many  Injuries,  LofTes,  and  Charges,  according  to 

that  in  Arifiotle  :    Better  it  is  to  yield  fome  of  our  Goods  k 

thofe  that  are  more  Potent,  than  contend  with  them  and  hft 

all  \  for  the  common  Chances  of  War  muft  be  confidered, 

which  if  fo,  the  Scope  of  the  principal  part  of  this  Firft 

Book  may  be  avoided,    and   we  let  into  the  peaceable 

'   Track  of  Traffick  and  Commerce. 

The  End  of  the  Fif^Jl  Booh 



[   219  ] 

O  O  K    II. 

CHAP.     L 



r)e  tl^e  Utim§  mfixlitgi  snu  SDbligattoniS  of 
mnm  anu  partnevgs  of  ^i^tps!  in  Cafes? 

O/'Navigatlon  /«  general. 

I.  0/ Owners  their  fe'veral  Po<voers 
o'ver  thofe  Vejfeh  they  are  Partners 
in.  Trover  for  a  part  of  a  Ship. 

II.  Where  Ships  are  obliged  to  make 
a  Voyage  before  they  can  he  fold  ; 
and  nvhat  may  he  done  <when  part 
proieft  againji  a  Voyage. 

V.  Th£  Majier  hoix)  brought  in  by 
the  Onjuners,  and  the  reafon  why 
infuch  a  Manner. 

J ,  Where  the  Oivners  ought  to  be 
repaired  for  the  Damages  of  the 

/I.  Where  Ships  broke  in  pieces  de- 
tttkine  the  Partnerjhip  as  to  the 
V^PK  and  nvhere  not. 

/U.  Where  a  Ship  Jhall  be  the  Buil- 
der*s^  and  ijuhere  only  his  '-whofe 
Materials  f>e  njcas  ereSied  <uoith. 

i^III.  Where  Property  of  the  Veffel  al- 
tered changes  not  that  of  the  Boat. 

iX.  A^hipfor  the  ad  of  Piracy  be- 

comes forfeited ',  yet  ^  bona  fide 
fold,  mchere  the  Property  may  be 

X.  Monies  borroived  by  the  Mafier^ 
ijohere  the  fame  obliges  the  Omuners, 
and  nxihere  not. 

XI.  Whether  he  that  obtains  an  tin- 
lanjofiil  poffeffion  of  a  Ship,  Jhall  an^ 
fnjcer  thefullFreight  totheOvuners, 

XII.  And  <njhere  the  O^juners  Jhall 
ha<ve  their  Freight ^  though  they 
lofe  their  Lading. 

XIII.  Where  a  Ship  may  become  a 
Deodandt  and  'where  not*  Not  for" 

feited  till  Condemnation, 

XIV.  Honxj  reco'verable  by  the  La<vjs 

XV.  Foreign  Ship  naturalized  ufon 
fale  needs  not  to  make  Oath  again 
upon  the  Nenv  Afi. 

Forfeitures  for  deli<vering 
Goods  ivithoui  paying  the  Du* 




N  the  precedent  Book  having  obferved  fomething  of 
the  Rights  of  Perfons  and  of  Things  in  a  ftate  of 
Nature.,  and  how  neceflarily  they  came  at  firft  to 
3e appropriated,  and  how  equitably  they  are  now  continu- 
ed in  thepolTcflion  of  thofe  to  whom  they  are  configned  by 
nhe  donation  of  others,  by  the  Laztjs  of  Nations ,  and  main- 

^      tained 




220       £)f  oujnetis  an&  l&attnerss  of  ^i^tps?*  Book i 

tained  or  deftroyed  by  the  equity  of  thofe  various 
which  rule  and  govern  them  in  reference  to  matters ylt!^ 
Uck^  all  which  is  juftified  by  the  Scripture  itfelf :  h 
not  now  feem   improper  to  examine  the  private 
changing  the  fame,  and  of  the  contingencies  and  ad 
tages  that  wait  on  that  which  we  properly  call  CoJ 
merce.  ^  .^ 

The  Great  Creator  having  finifhed  his  Mighty  WAk 
and  given  Man  that  Dominion  which  he  now  enjoys,  aj 
well  over  the  Fifh  in  the  Seas,  as  the  Beafts  in  the  Field, 
he  was  not  forgetful  of  bellowing  on  him  thofe  thing 
which  were  neceffary  for  the  Government  and  fuppon 
of  the  fame,    creating  at  the  fame   time  Trees  i^icli 
grow  as  it  were  fpontaneoufly  into  Veflels  and  Canoosi 
which  wanted  nothing  but  launching  forth  to  render  the: 
ufeful  for  his.  accommodation,    which  afterwards  he  by 
his  Divine  Gen  ills  (inipired  by  that  Mighty  One)  findlr: 
Materials,  hath  fince  fo  compleated  and  equipped,  aj  ti 
render  it  the  mofl  beautiful  and  ftupendious  Creature  (no: 
improperly  fo  called)  that  the  whole  World  canproooa 
which  being  not  retarded  by  lett  of  Winds,  or  other  cor, 
tingent  accidents,    fubmits   itfelf  to  plow  the  unknow: 
paths  of  that  vafl  Element,  to  brave  all  Encounters  a 
Waves  and  Rocks,  to  fathom  and  furvey  the  vaftimmen- 
fities  of  the  very  World  itfelf,  to  people,  cultivate,  inc 
civilize  uninhabited  and  barbarous  Regions,  and  topro- 
claim  to  the  Univerfe  the  Wonders  of  the  ArchittU,  the 
Skill  of  the  Pilots  and,  above  all,  the  Benefits  of  Comma \ 
fo  that  it  is  no  wonder  at  this  day  to  find  Nations  contend- 
ing who  fhould  furpafs  each  other  in  the  Art  of  Nafiga 
tion,  and  to  monopolize  if  pofTible,  the  very  Commoc 
and  Trade  of  the  World  into  their  hands ;  and  that,  a! 
by  the  means  of  this  mofl  excellent  Fabrick. 
Areth.poji  H.  Hence  it  is,  that  Ships  and  Veffe)s  of  that  kind  be- 

Joan.  Faber.  jng  originally  invented  for  ufe  and  profit,  not  for  plealiiR 
']ator'num'  ^^^  delight,  to  plow  the  Seas,  not  to  lie  by  the  Walk 
3^.  inji.  de  '  to  fupply  thofc  of  the  Mountains  as  well  as  thofe  on  tit 
chlig.  qua  ex   Sea  Coafts.  , 

^uafidelia.  Therefore  upon  any  probable  defign  the  major  parte 

the  Owners  may  even  againft  theconfent^  though  not  ^t^ 
out  thQ  privily  and  knowledge  pf  the  reft,  freight  out^lk-' 
VelTel  to  Sea.  .. 

dAP.  I  0f  ©tBttetiS  ana  ]^attmv&  of  &t)ip^,      zi  i 

vjf  it  fhould  fo  fall  out  that  the  major  part  pr^/^  agaiinll: 
the  Voyage,  and  but  one  left  that  is  for  the  Voyage,  yet 
the  fame  may  be  efFeded  by  that  party,  efpecially  If  there 
be  (({uality  in  Partnerfhip . 

.pButthe  Admiralty  compels  them  to  give  Security  for  h.Raym.izi^. 
licr  fafe  Return  5    and  the  Recognizance  may  be  fued  S.  P,  ibid, 

tnere.  ^         ^  ^ 

^Buf,  where  two  Part- Owners  (ent  out  the  Ship,  with- 
out the  Confent  of  the  third,  and  fhe  was  loft ;  the 
third  mud  bear  his  Proportion  of  the  Lofs,  becaufe  he 
would  have  had  his  Share  of  the  Profits,  if  any.  i.  Fern, 
iQj,  But  note  in  this  Cafe  there  had  been  no  previous 
Application  to  the  Admiralty,   as  there  ought  to  have 

been.  '^'-' - 

The  Account  of  the  Voyage  fettled  by  a  major  part  of  i  p^ern.  465. 
the  Part- Owners,  binds  the  reft. 

As  an  encouragement  to  the  Building  of  Ships  being  of 
that  univerfal,  Advantage  to  the  Publick  in  point  of 
Trade,  and  Commerce,  to  contrive  and  veft  the  Owners 
propriety  in  them,  both  by  the  Common  Laws  of  this 
Realm,  and  the  Maritime  Laws,  it  is  provided  that  in 
cafe  a  Ship  be  taken  away  or  the  Owners  difpofifefled,  they 
may  maintain  an  Adionof  Trover  and  Converfion  for 
an  8th,  -'a  i6th,  or  any  other  Part  or  Share  of  the 
lame.  . ..  :iO'- 

Inan  Adion  on  the  Cafe,  the  Plaintiff  declared  that  he  Tenants  in 
was  Owner  of  the  i6th  part  of  a  Ship,  and  the  Defen-  Common  of 
dant  Owner  of  another  1 6th  Part  of  the  fame  Ship,  and  ^  ^^^P* 
that  the  Defendant  fraudulently   and   deceitfully  carried 
the  laid  Ship  ad  loca  tranfmarina^  and  difpofed  of  her  to 
bis  own  ufe,  by  which  the  Plaintiff  loft  his   i6th  part 
to  his  damage :   On  not  guilty  pleaded,  and  verdid  for 
the  Plaintiff,  it  was  moved  in  Arreft  of  Judgment,  that 
the  Adion  did  not  lie,  for  tho'  it  be  found  deceptive, 
yet  this  did  not  help  it,  if  the  Adion  did  not  lie  on  the 
fubjcd  matter  ;  and  here  they  are  Tenants  in  Common  ^^f  §  ^23, 
of  the  Ship,  and  by  Littleton  between  Tenants  in  Com-  i  /»/?.  199.  ^. 
mon  there  is.  not  any  Remedy,  and  there  cannot  be  any  200.  a. 
fraud  between  them,  becaufe  the  Law  fuppofes  a  truft  ^''^^-  ^9°* 
and  confidence  betwixt  them  •,  and  upon  thefe  Reafons  ^?^' 
Judgment  was  given  ^uod  ^fcrens  7iil  capiat  per  billam. 



%tz      m^^mu  anb  Partners! of  %^^%  Boc^ 

Graves  againft  Sawcer^    Raym,  15.    i'  Levinz  29.  j. 

I  Keeble  38.3  Leon.  228.  Bennington  againft  Bennm<l- 
Leg.  Fin.  C.  §.  III.  'Owners  by  Law  can  no  ways  be  obliged  to  cV- 
pro  Socio  ^  nue  their  padion  or  partnerfliip  without  funderin»  j  b 
^^''Jjf'         yet  if  they  will  funder,  the  Law  Marine  requires  fomeco' 

fiderations  to  be  performed  before  they  can  do  fo.  A: 

^a'tctZln'  ^^^^^^^^^  ^^^^^  ^^^P  ^^  "^^^y  t>«-"Jt,  and  never  yet'made 
Zpro7c7r'  ^^y^ge»  or  is  newly  bought,  flie  ought  to  be  fubjeft., 
one  Voyage  upon  the  common  out  read  and  hazard,  be. 
fore  any  of  the  Owners  fhall  be  heard  to  funder  and  d;:- 
charge  their  parts  •,  but  by  the  Laws  of  England  theOw- 
ners  may,  before  any  fuch  Voyage,  fell  or  tranfmit  the:: 
Bart.i^PauL      If  it  falls  out  that  one  is  fo  obftinate  that  his  confer: 

%nai'o\'''^''  ^^""^^  ^^  ^^*^'  y^^  ^^^  L^^^  "^^^  enforce  him  either  t. 
fZdumff!'*'^  ^o^^'  o^  ^o  ^^^^  ^^^  proportion  •,  but  if  he  will  fet  noprice, 
iocat.  the  reft  may  out-rigg  her  at  their  own  cofts  and  chaise?. 

and  whatfoever  Freight  Ihe  earns,  he  is  not  ,to  have  an, 
ftiare  or  benefit  in  the  fame.      But  if  fuch  VefTdl  happen 
to  mifcarry  or  be  caft  away,  the  reft  muft  anfwer  him  ,V; 
.  part  or  proportion  in  the  Veffel. 

vl^is  i^'juris  ^"^  ^^  ^^  Ihould  fall  out  that  the  major  part  of  the  Owe- 
in  Leg.  utique  ^^s  rcfufe  -to  fet  out  the  Vefifel  to  Sea,  therQ  by  reafon  c 
para  culpa  de  the  unequality  they  may  not  be  compelled  ;  but  then  [1 
rei  undic.  &  VefTel  is  to  be  valued  and  fold :  The  like  where  partof  tiic 
^  na^il'^de^^^'  Owners  become  deficient  or  unable  to  fet  her  forth  10 
ufufiua.         Sea. 

IV.   The  Mafter  of  the  VefTel  is  eligible  by  the  Part 
Leg.mnaliter  Owncrs  in  proportion,  not  by  the  majority,  and  hethz: 

fail  "^"^  ^     ^^  ^^^  ^^^^  ^^  ^o  ^^  preferred.    The  Wifdom  of  the  la:;. 

Ages  have  been/uch,    that  few  have  gone  out  in  that  cor. 

dition,  but  thofe  that  have  commonly  had  fliaresorp:: 
"^  in  the  fame  VefTel.     In  the  preferring  therefore  of  a  Mi- 

'1 4 /«///. 1 46.  fter,  his  ability  and  honefty  is  to  be  confidered,  fmceoi 

him  refts  the  charge  not  only  of  the  VefTel,  but  oiihhr 
i8i7.8,«.5S.  dmg  •,  their  very  actions  fubjeding  the  Owners  t  to anfwc 

for  all  damage  that  ihall  be  fuftained  by  him  or  his  Ma: 
'*HilL2'i,Car.  ners,  be  it  in  the  Port  or  at  Sea,    to  the  Lading  or 
2.  B.  R  Mor/e  of  the  Merchant  or  Laders,  and   they  are  made  liable  i 
TnLZ^''     ^^^^^y  ^^^^  Common  Laws  *  oi England,  as  the  Law: 
Caup.stah.     Marine. 
Leg,  I.  Sea. z.  ^      ■  ;, 

Chap.  I.  SDt  ^Mxm  attD  mvttim  Of  &i)ip&.        223 

V.  If  the  Mailer  commits  offences  either  negligently 
or wilfuUyj  he  ihall  be  refponfible  over  to  his  Owners  for. 
the  reparation  of  damage  ;  nor  are  they  bound  to  join,.; 
but  may  fever  and  fue  apart  as  well  by  the  Common  Law  *  *  Stanley  ever- 

the  Marine  :  So   likewife'  if   the   Ship   hath  earned  fi^'^y^'f- 
fj-eiffht,  and  part  of  them  receive  their  parts,  the  reit  "^  ^^^ 

-^ay^bring  their  A6lion  for  their  fhare  without  joining 
with  the  others. 

The  Defendant  and  feven  other  Perfons  were  proprie-  Mailers  and 
tors  of  a  Ship,  in  which  Goods  were  ufually  tranfported  Owners  re- 
fer hire,  and  the  Fhmtiff onerat  Goods  upon  the  Ship  to  %o^^a^^«- 
lie  carried  for  hire,  from  London  to  'Toppam  in  Comitatu 
dnon,  and  that  the  l^efendant  received  them,  and  un- 
dertook to  bring  them  to  Topjbam,  but  that  he  not  being- 
careful  of  his  Duty  but  negleding  it,  iam  improvidentur 
placed  and  carried  the  faid  Goods,  that  tho*  the  Ship 
fafely  arrived  at  "Topf/oam^  yet  the  Goods  were  fpoiled. 
And  upon  non  culp,  pleaded.     The  Jury  found  a  fpecial 
Verdid,    W2.    That    the   Defendant  and   feven   other 
Perfons  were  Proprietors  and  Part- Owners  of  the  Ship, 
that  the  Ship  had  a  Mailer  heat  in  her   by  the  Part- 
Ovvners  who  had  60  /.  Wages  for  every  Voyage  between 
l^o^jham  and  London^  that  the  Goods  were  delivered  to  the 
Mafter,  none  of  the  Part-Owners  being  prefent,  and  that 
there  was  not  any  Contract  made  with  them  or  any  of 
them  by  the  Plaintiff,  that  the  Ship  arrived  fafe  to  ^op- 
Iham  but  the  Goods  were  fpoiled.      Etfipro  ^er*  pra 
^tr'finonpro  Def. 

And  two  points  were  made.  .      - 

1.  If  the  Proprietors  are  chargeable  no  Con  trad  being 
made  with  them,  and  there  being  a  Mafter  that  is  charge- 
able in  refped  of  his  Wages,  according  to  the.  Cafe  of 
%-[e  and  Slue,  yet  per  Holt  Ch.  Juftice  clearly,  that  tho* 
the  Mafter  be  chargeable  in  refpecl  of  his  Wages,- fo  are 
the  Proprietors  in  refped  of  their  Freight  that  they 
receive  for  the  carriage  of  the  Goods,  at  the  Eledion  of 
the  Plaintiff. 

2.  If  the  Aftion  lay  againft  the  Defendant  alone,  it 
appearing  that  there  are  other  Part- Owners  not  made 
C|efendants  •,  and  held  that  the  A^ion  did  not  lie  againft 
him  folc,  but  ought  to  have  been  againft  all  the  Part-    • 


224       Of  SDtuners  ana  partnerjs  of  ^fiips.  Book  ii. 

Owners,     for  all    the  Part- Owners    are  chargeable  in 
refpcdt  of  the  Profit  they  make  by  the  carriage  of  the 
Goods,  and  that  in  point  of  Contradl  upon  their  under- 
taking, be  it  implied  or  exprefs,  and  are  not  chargeable 
as  TrefpafTers,  for  then  one  might  be  chargeable  alone 
but  in   point   of  Contrad  upon  their   Receipt  of  the 
Goods  to  be  carried  for  hire.     ] udgmtnt  pro  Def en,  ^ 
by  3  Mod.  321.  Bo/on  con,  Sanford  3  Levinz.  258.  where 
it  is  with  a  Cur.  advifare^  mes  le  Reporter  ut  audivit  Judg- 
ment pro  Defen. 
Leg.  inter  flu        VI.  If  a  Ship  be  broken  up  or  taken  in  pieces,  with  an 
^ta^amW.^de  ^"^^"^  ^^  convert  the  fame  to  other  ufes;  if  afterwards 
*ver.ob£.        upon  advice  or  change  of  mind,  fhe  be  rebuilt  with  the 
fame  Materials,  yet  this  is  now  another,  and  not  the  lame 
Ship,  efpecially  if  the  Keel  be  ript  up  or  changed,  and 
the  whole  Ship  be  once  all  taken  afunder  and  rebuilt, 
Leg,  quoding,  there  determines  the  Partnerihip  quoad  th^  Ship.    But  if 
/«.  F.  de  leg.  jj  gj^ip  i^g  j.jpj  yp  jj^  parts,  and  taken  afunder  in  parrs,  and 

repaired  in  parts,  yet  fhe  remains  flill  the  fame  VeiTel  and 
not  another  ;  nay  though  fhe  hath  been  fo  often  repair- 
ed that  there  remains  not  one  flick  of  the  Original  Fa- 
Leg.  Mufiusff.  VII.  If  a  Man  (hall  repair  his  Ship  with  Plank  or  other 
de  ret  vtndic.   ]y[aterials  belonging  to  another,  yet  the  Ship  maintains 

and  keeps  her  firft  Owners. 
ff.Iih.e.tit.i,      But  if  a  Man  take  Plank  and  Materials  belonging  to 
A?- 01-  another,  and  prepared  for  the  ufe  of  Shipping,  and  with 

them  build  a  Ship,  the  property  of  the  VeiTel  follows  die 
Owners  of  the  Materials  and  not  the  Builder. ex  meisf  But  if  a  Man  cut  down  the  Trees  of  another,  or  takes 
ff.  deacq  rer.  Timber  or  Planks  prepared  for  the  eredling  or  repairing 
tn^e^eruXfi  ^^  ^  Dwelling-Houfe  ;  nay,  though  fome  of  them  are 
quUfic.ff.  de  for  (hipping,  and  builds  a  Ship,  the  Property  follows  no: 
fign.  aa.        the  Owners  but  the  Builders. 

Leg.Marcellus  VIII.  If  a  Ship  be  fold  together  with  her  Tackle,  Fur- 
in  §.  arma-  ^iture.  Apparel,  and  all  other  her  Inftruments  thereunto 
7T^inicat  belonging,  yet  by  thefe  words  the  Ship's  Boat  is  not  con- 
.  Rolls  A-'  veyed,  but  that  remains  flill  in  the  Owners  ;  fo  it  is  if  the 
bridg,  530.  Ship  be  freighted  out,  and  afterwards  at  Sea  fhe  commits 
Bald,  in  Leg.   Piracy  :  The  Ship  is  forfeited,  but  the  Boat  remains  U 

<umproponas       j-q  j-j^g  OwHCtS  f. 

Cad.  de  Nau- 

iic.  efccnare,  p^^^ 

num.  6. 

CiiAP.  I.  M^^nevs  anh  mttnevs  of  &^ip§,      225 

And  though  Baliaft  is  generally  ufed  in  Shipping  by 
thofe  Ships  that  are  freighted  outwards,  in  order  to  bring- 
ing home  of  Goods,  yet  is  not  the  fame  any  part  of  the 
Furniture  of  the  Vefiel ;  and  fo  it  was  adjudged  in  debt  on 
Bod,  The  Condition  was,  that  whereas  the  Plaintiff  had 
jj^ght  of  the  Defendant  a  Ship,  if  the  Plaintiff  fhall  en- 
■ay  the  laid  Ship  with  all  the  Furniture  belonging  to  the 
linie,  without  being  difturbed  for  the  Ship  or  any  Furni- 
ture appertaining  to  it,  that  then,  &c.  And  the  cafe  fell 
out  to  be,  that  after  the  fale  of  the  Ship,  a  ftranger  fucd 
the  Plaintiff  for  certain  monies  due  for  Baliaft  bought  by 
the  Defendant  for  the  fame  Ship,  in  which  Suit  he  ob- 
nined  Sentence,  upon  which  the  Ship  was  feized,  The 
Qucftion  was,  If  Baliaft  be  Furniture  for  a  Ship  or  not,  Zz'«/!?r*s  Cafe* 
it  was  refolved  that  it  was  not ;  for  though  it  may  be  as  ^^^^'  4^>  47* 
neceffary  as  Sails,  yet  it  is  not  always  fo,  for  fometimes 
they  fail  without  Baliaft,  for  the  Merchandize  itfelf  may 
be  iufficient  to  anfwer  that  purpofe. 

IX.  If  a  Ship  commits  a  Piracy,  by  reafon  of  which  flie  Bhigle/s  Care^, 
becomes  forfeited,  if  before  feizure  fhe  be  Bofia  fide  fold,  ^^^^^  Abridg. 
the  property  ftiall  not  be  queftioned,    nor  the  Owners  n-  ^r?* 

J-    /I  J    f   !      r  ~  ^^Z'  lib.  14. 

divelted  ot  the  lame.  ///.  i.  §.  17. 

A  Mortgagee  of  a  Ship,  by  Deed,  intrufts  the  Mort- 
gager with  the  original  Bill  of  Sale  ;   the  Mortgager  in-  i.P.miliam$ 
dorfes  thereon  fublequent  Mortgages  or  Bills  of  Sale  of  393»  394- 
feveral  Parts  of  the  Ship,  the  firft  Mortgagee  acquiefces, 
he  Ihall  be  poftponed. 

X.  If  a  Mafter  fliall  take  up  Monies  to  mend  or  vi6lual  ^ 
his  Ship  where  there  is  no  occafion,  though  generally  the 

Owners  fhall  anfwer  the  fad  of  the  Mafter,  yet  here  they 
Ihall  not,  but  only  the  Mafter.  But  if  there  were  caufe  of 
"tending  the  Ship,  though  the  Mafter  fpend  the  Money  BrUgpyanU 
another  v/ay,  yet  the  Owner  and  Ship  become  liable  to  ^^f^>  H^bart^ 
the  fatisfadlion  of  the  Creditor;  for  it  were  very  ^J^^^^fon-^^'  '^^g]^' 
«ble  that  the  Creditor  ftiould  be  bound  to  take  upon  him 
the  care  of  repairing  the  Ship,  and    fjpply  the  Owners 
foom,  which  muft  be  fo,  if  it  fliould  be  neceffary  for  him^ 
to  prove  that  the  Money  was  laid  out  upon  the  Ship  ;  ^o  on 
fne  other  hand,  it  ftands  with  reafon  that  he,  be  fure  that 
^  lends  his  Money  on  fuch  an  occafion  as  whereby  the 
MafterMacl  may  oblige  the  Owners,  which  he  cannot  do 
otherwife,  unlefs  he  knows  that  the  Money  borrowed  was 

P  neceffary 


TT  ' 

2> 26       (2Df  SD^mnm  anfi  i^attnm  o(  ^Ups.  Book  11. 

Glof  African,  ncceflary  for  the  repair  of  the  Ship  -,  and  therefore  if  the 
jupereod.  leg.    gj^jp  y^2i\itftd  fome  repairs,  and  a  far  greater  and  more 
^*  extravagant  fum  was  lent  than  was  needful,  the  Owners 

fhall  not  be  liable  for  the  whole. 
i.P.JFilJiams      The  Eaft- India  Company's  Agent  in  the  Indies  bought 
395*  a  Ship  and  her  Cargo  of  the  Commander,  who  had  no 

Power  to  fell  her  ;  the  Owner  had  the  Value  decreed  for 
Ship  and  Cargo  (the  Value  being  found  by  a  Jury)  and 
/«J/^  Intereil,  viz,  12  I.  per  C  en  I. 
Dig.  Uh.G.  tit.      XI.  If  a  man  gets  pofTefTion  of  a  Ship  having  no  Title  to 
1,62.^  lib.    ^i^g  fame,  by  the  Law  Marine,  he  Ihall  anfwer  fuch  da- 
\'  I  '&Papi-  ""i^g^  ^s  the  Ship  in  all  probability  might  have  earned*, 
-j/^7«onthe      and  the  reafon  of  that  is,  becaufe  the  only  end  of  Ship- 
fame  Lasv.      ping,  is  the  employment  thereof :  but  if  a  Warrant  be 
direded  out  of  the  Jdmiralty  to  the  Marjhal^  to  arreft 
fuch  a  Ship  and  Saho  Cuftodire^  who  by  force  of  the  lame 
enters  into  the  fame  Ship,  though  the  Warrant  does  not 
Creamer         mention  that  the  Officer  fliould  carry  away  the  Sails  of 
yrjHs  Jockhy,  ^^^  i^mt  Ship,  yet  he  may  juflify  the  taking  the  fame, 
iSsT^  for  that  he  cannot  Salvo  Cujlodire  the  fame  Ship,  unlefs 

he  carries  away  the  Sails. 

XII.  A  Ship  is  freighted  out,  accordingly  fhe  receives 
BlgejlJih.  19.  in  her  Lading  purfuant  to  agreement,  afterwards  an  Em- 
iit.  2.  61.  bargo  happens,  and  the  Lading  is  taken  as  forfeited,  yet 
linlm^eLaw  ^^^^  Owners  fliail  notwithftanding  receive  Freight^)  for 

*  here  is  no  fault  in  them,  but  only  in  the  Merchant. 

XIII.  In  Aqua  dulci  a  Ship  may  become  a  Deodand, 
but  in  the  Sea,  or  in  Aqua  falfa^  being  an  Arm  of  the 

c^hjl.fil.  58.  Sea,  no  Deodand  of  the  Ship  or  any  part  of  it,   though 

any  body  be  drowned  out  of  it,  or  otherwife  come  by  their 

death  in  the  Ship  *,    becaufe  on  fuch  waters,  Ships  and 

o;:her  VeiTels  are  fubjed  to  fuch  dangers  upon  the  raging 

weaves  in  refped  of  Wind  and  Tempefl  ;  and  this  divcr- 

.    fity  all  our  antient  Lawyers  do  agree  in,  and  it  does  more 

efpecialiy  appear  in  the  Parliament  Rolls,  where  upon  a 

Rot.  Parliaf}:.  Petition  it  was  defired,  'That  if  it  Jhotild  happen  that  uny 

5iii<^.  3.        j^^j^  ^y.  ^Qy  jijQui^i  ^^  drowned  by  a  fall  out  of  any  Sbipi 

3X2.I'.  106.  ^^^^^^  ^^  ^#4  ^^O'  J^f^^ld  he  no  Beodands  :    Whereupon 

4^^.2.3.3^.  the  King,  by  great  advice  with  his  Judges  and  Council 

learned  in  tne  Laws,    made  anfwer,   The  Shipy   Boater 

Fejfely  being  upon  the  Sea  floould  he  adjudged  no  Deodandt 

i  H.  5. «  35.  i>i4i  i^ifjg  upon  a  frejh  River  it  Jhould  he  a  Deodand  -«^ 

Chap,  t  ^t S^lx^nm  SttS  l^avtum  Of  ^f^lpQ,        ^2f 

lat  the  King  will/hew  favour.     There  are  abundance  of 
other  Petitions  upon  the  like  occalion  in  Parliament. 

A  Ship  lying  at  Rotherhith^  in  the  County  of  Kent^ 
near  the  ihore,  to  be  careen'd  and  made  clean,   it  hap- 
pened that  one  of  the  Shipwrights  being  at  work  under 
her  at  low  Water,  the  Vefiel  (then  leaning  afide)  fortuned 
to  turn  over  the  contrary  fide,  by  means  of  which  the 
Shipwright  was  killed  :  Upon  a  Trial  at  Bar,  where  the 
Queftion  was,  Whether  this  Deodand  did  belong  to  the  Ukh.  igCin 
E^rlo^  Salt shry,  who  v/as  Lord  of  the  Manor,  lying  2-  t»B,R. 
contiguous  to  the  place  where  the  Man  was  flain,  or  to 
the  Almoner  as  a  matter  not  granted  out  of  the  Crown  ? 
la  that  cafe  it  v/as  refolved,  That  the  Ship  was  a  Deodand^ 
and  the  Jury  thereupon  found  a  Verdi6l  for  the  Lord  of 
Salisbury,  that  the  fame  did  belong  to  his  Manor. 

On  Impoftation  of  prohibited  Goods,  the  Ship  cannot  T/V^  i  r.?/?.  47. 
be  feiz'd  as  forfeit  till  a  Condemnation  in  the  Exchequer  ^  ^jf'j'^^l' 
thereon.     Hor?te  againft  Ivye  2  Keehle  604. 

XIV.  Thus  Men  from  their  necefiity  and  fafety  having 
from  hollow  Trees,  nay  Reeds,  Twigs  and  Leather  (for 
fuch  were  the  rude  beginnings  of  thofe  ftupendious  things 
we  now  admirej  advanced  the  Art  to  that  degree,  as  to 
render  it  now  the  moft  ufeful  thing  extant  5  and  as  the 
Mathematicks,  Ailronomy  and  other  Sciences  have  ad- 
ded to  its  fecurity,  fo  have  fucceeding  Ages  from  time  to 
time,  provided  Privileges  and  Laws  by  which  it  hath  al- 
ways been  regulated  and  governed,  the  which  upon  all 
occafions,  and  in  all  Courts  have  generally  had  a  genuine 
conftrudlion  as  near  as  might  be  to  the  Marine-Cultoms  ; 
and  therefore  at  this  day,  if  a  Ship  be  taken  away,  or  the 
Owners  difpoffeft,  they  may  maintain  an  A6lion  of  Tro- 
ver and  Converfion  for  an  eighth  or  fixteenth  part  of  the 
lame,  as  well  by  the  Common  Laws  of  this  Kingdom, 
as  the  Law  Marine,  and  they  need  not  join  v/ith  the  reft 
of  their  Owners. 

XV.  Upon  an  information  tarn  qiiam^    grounded  upon  ShiplNatara^ 
the  Ad  of  Navigation,  for  importing  Goods  in  a  Foreign  ^^^^'^' 

Ship  contrary  to  that  A<^,  The  queftion  was,  whether  or 
not,  if  a  Foreign  Ship  naturalized  by  the  new,  A6t,  being 
a  Prize  taken  in  the  late  War  with  Holland^  be  afterwards 
fold  to  a  Foreigner,  who  fells  her  again  to  an  Englijh  Man, 
whether  or  no  the  Oath  muft  be  taken  again  according 
»*  Pa  to 

228       €)f  ©toners  anti  FattnerjS  of  ^fiipg^  Book  ii 

to  the  A61  ?  Per  Curiam  it  need  not,  becaufe  that  the 
Ship  was  once  lawfully  naturalized.  Hardres  511.  Martin 
againft  Verdue. 

Forfeitures  XVI.  Stat.  4th  and  5th  TVill.  and  M?.  cap.  15.  ^,  n. 

for  delivering  ^\\  perfons  who  by  way  of  Infurance,  or  otherwife,  fhalj 

ou°°payTng "    Undertake  to  deliver  any  Goods  imported  from  beyond 

the  Duties.  Sea  without  paying  the  Duties  payable  for  the  fame,  or 
any  prohibited  Goods,  ihall  forfeit  500  /.  *^K^ 

5-  ^5'  And  all  who  fhall  agree  to  pay  any  Money,  for  the  in- 

Turing  or  conveying  any  Goods  imported  without  paying 
the  Duties,  or  any  prohibited  Goods,  or  fhall  receive 
fuch  prohibited  Goods,  or  fuch  other  Goods  before  the 
Duties  are  paid,  knowing  thereof  j  fhall  alfo  forfeit  for 
every  Offence  500  /. 

^'  '^-  And  if  the  Infurer  or  Manager  of  fuch  Fraud  be  the  dif- 

coverer^  he  fhall  not  only  keep  the  Infurance  Money  given 
him,  and  be  difcharged  of  the  Penalties  to  which  he  is 
liable,  but  fhall  have  one  half  of  the  Penalties  impofed 
upon  the  Parties  making  fuch  Infurance  or  receiving  the 
Goods  as  aforefaid  :  And  in  cafe  no  difcovery  be  made  by 
tl^e  Infurer,  and  the  Party  Infured  fhall  make  difcovery 
thereof,  he  fhall  recover  back  his  Pr^mium^  and  have  one 
Moiety  of  the  Forfeitures  impofed  upon  the  Infurer,  and 
be  difcharged  of  thofe  impofed  upon  himfelf. 

§.17.  The  faid  Penalties  and  Forfeitures  to  be  recoverable 

according  to  the  Courfe  of  the  Exchequer, 

5-  18.  No  Penalty  to  be  recoverable,  unlefs  profccuted  \vithin 

Vide  Ch.  xii.    1 2  Months  after  the  Fa6t  committed. 

Sec,  ult* 




[  229  ] 

C  H  A  P.     II. 

ilpaCet?}  oE  %>f)ip0tf)m  action  confiiOewti  in 
reference  to  cafeji  piibatt  anD  publico 

A  Mafler  or  Skipper  his  condition    ' 
confidered,  in  reference  to  his  Inte- 
reft  and  Authority  generally.      The 
Mafier  only  liable  to  Deviation 
and  Barret ry. 

[.  If  Goods  be  lof  or  imbezxled,  or 
any  other  detriment  happens  in  a 
Port,  ivhojhall  anfwer.    Mafer 
chargeable   to    pay   the    Duty  of 

II.  "[be  ^Duty  of  Mailers  of  Ships, 
as  if  they  Jhall  fet  Sail  after  an 
Embargo ^  ^jubofjall  anfnjoer  ? 

V.  Of  faults  afcribed  to  him  before 
departure  in  tempejiuous  Weather y 
ftaying  in  Port,  &c. 

'.  0<ver-charging  or  onjer- lading  the 
Ship  above  the  Birth-mark  ;  or  re- 
ceipt of  fuch  Perfons  on  Ship-board 
as  may  hazard  the  Lading. 

II.  Of  Lading  aboard  in  the  Ships  of 
Enemies,  his  own  proving   difa- 

/II.  Of  Jhipping  Goods  elfevohere 
than  at  the  puhlick  Ports  or 
Keys  ;  and  the  taking  in  prohibit- 
ed Goods. 
,  ii^III.  Of  ^wearing  unlanxful  Colours 
or  Flags,  and  of  yielding  up  his 
Ship  coivardly,  if  affaulted,  vohere 
liable,  and  <vohere  excufed. 

IX.  Of  carrying  fictitious  Coquets 
and  Papers,  and  refufing  payment 
ofCuJioms  and  Duties. 

i^'.Of  fetting  Sail  ^th  infufiicient 

-,  Tackle,  and  of  taking  in  and  de- 
livering out  voith  the  like  ;  atid  of 
his  Charge  of  Goods  till  fafely  de- 
livered.  I 

XI.  Of  departing  luithout giving  »*- 
tice  to  the  Cuflomer. 

XII.  Of  Faults  commited  by  Mafler 
and  Skipper  at  Sea. 

XIII.  Rules  in  Lavu  in  the  charging 
him  for  reparation  of  damage ,   In- 

fant  Mafler  of  a  Ship  fueable  ia 
the  Admiraltyy  for  vuafiing  or 
fpoiling  Goods. 

XIV.  Of  the  Poiver  and  Authority 
that  the  Mafler  hath  in  difpofing 
Hypothecating  or  Pledging  the  Ship, 
Furniture  and  Lading. 

XV.  Where  Mafier s  are  difabled, 
though  in  neceffjty,  to  hnpavjn  the 

XVI.  Where  they  may  difpofe  of  Vef 
fel  and  Lading,  and  ivhere  not, 

X  V I L  What  Veffeh  and  Mariners  the 
Mafier  mufi  have  for  importing  in 
or  exporting  out  of  His  Majefiy^s 
Plantations  in  Afia,  Africa,  and 

XVIII.  What  Ships  may  go  from 
Port  to  Port  in  England. 

X.IX.  Ships  not  to  import  the  Goods 
of  any  Country,  but  of  that  from 
vohence  they  are  brought. 

XX.  What  time  the  Mafier  fh all  he 
coining  up  after  arrived  at  Gravef- 
end,  or  at  any  other  Port  vjithin 
the  Realmy  in  order  to  his  dif 

XXI.  Of  going  from  Port  to  Port 
voithin  the  Realm  hovj  provided. 

XXII.  Of  Goods  prohibited  to  he 
i?nported  from  the  Netherlands  or 
Germany  in  any  Ships  twhatfQ- 


4  a 

5.  4 


S©atterj{  of  @l)tp!J.      Bookii. 

In  Chancery. 

L    /\    Mafter  of  a  Ship  is  more  than  one,  who,  for  his 

ji\^  knowledge  in  Navigation^  fidelity  and  difcretion 

hath  the  Government  of  the  Ship  committed  to  his  care 

Lig.  i.deEx'  and  management  •,    and  by  the  Common  Law,  (by  which 

frcii.  Aa,       Properties  are  to  be  guided,)  he  hath  no  Property  either 

general  or  fpecial,  by  the  conftituting  of  him  a  Mafter; 

Boh.  Rep.foL  yet  the  Law  looks  upon   him  as  an  Officer,  who  muft 

'  ^ '  i^r^I      render  and  give  an  account  for  the  whole^charge,  when 

Tnan^     «.      ^^^^  committed  to  his  care  and  cuftody  ;  and  upon  failure 

to  render  fatisfadion  :  And  therefore  if  misfortunes  hap. 

pen,    if  they  be  either  through   negligence,  wilfulnefs, 

or  ignorance  of  himfelf  or  his  Mariners,  he  muft  be  re- 


A  Mailer  of  a  Ship,  fo  appointed  by  B.  Owner,  treats 
with  the  Plaintiff  to  take  the  Ship  to  Freight  for  80  Tuns 
to  fail  from  London  to  Falmouth,- 2cc\^  fo  from  thence  to 
Barcelona,  without  altering  the  Voyage  •,  and  there  to  un- 
lade at  a  certain  Rate  fer  Tun.  And  to  perform  this  the 
Mafter  obliges  the  Ship  and  what  was  therein,  valued  at 
300  /.  and  accordingly  a  Charter-party  was  made  and 
iealcd  between  the  Mafter  and  the  Merchant  j  but  the 
Owners  of  the  Ship  were  no  Parties  thereunto.  The 
Mafter  deviates  and  commits  Barretry,  and  the  Merchant, 
in  effed:,  lofes  his  Voyage  and  Goods,  for  the  Merchan- 
dize, being  Fifh,  came  not  till  Lent  was  paft,  and  were 
rotten.  The  Merchant's  Fa6lor  thereupon  fueth  the  Ma- 
fter in  the  Court  of  Admiralty  at  Barcelona,  and  upon 
an  Appeal  to  a  higher  Court  in  ^ain,  hath  Sentence 
againft  the  Mailer  and  the  Ship  ;  which  coming  to  his 
Hands  (t'/2;.  the  Merchant's  Hands)  the  Owner  brings  an 
Adlion  of  Trover  for  the  Ship  ;  the  Mafter  fues  in  Chan- 
cery to  ftop  this  Suit,  and  another  Suit  brought  for  the 
Owner  for  Freight,  claiming  dedudlions  out  of  both,  for 
his  Damages  fuftained  by  the  Mafter,  for  the  breach  of 
the  Articles  by  the  Mafter,  for  if  the  Owner  gives  Au- 
thority to  the  Mafter  to  contrad  he  fhall  bear  the  lofs, 
f^ut  in  Cafe  of  Bottomry  after  a  Voyage  begun  the  Mafter 
cannot  oblige  the  Owner  beyond  the  Value  of  the  Ship: 
But  this  Cafe  is  on  Contract. 

Lord-Chancellor.  The  Charter-Party  values  the  Ship 
at  a  certain  rate,  and  you  fliall  not  oblige  the  Owners  far- 

^  ■     ^  ther, 


Chap.  II.        ^attm ot ^UP^^    "  231 

ther,  and  that  only  with  relation  to  the  Freight,  not  to 
the  value  of  the  Ship  ;  the  Mafter  is  liable  to  the  Devia- 
tion and  Barretry,  but  not   the  Owners  ;    elfe  Mafters 
ihould  be  Owners  of  all  mens  Ships  and  Eflate,  Micb^ 
Car.  2. 
But  where  the  Mafler  of  the  Ship  took  Beef,  Sails,  2r^r«.  643, 
tff.  on  Credit,  and  failed,  the  Owners  were  obliged  to 
pay  ;  and  not  allowed  to  defend  themfelves  by  infifting 
H  that  the  Mafter  was  liable  only,    and  that  they  had  given 
him  Money  to  pay  the  Plaintiff.     He  is  but  their  Ser-  ' 

vant,  and  where  he  buys,  they  are  liable,  and  continue 
fo  if  he  has  not  paid  the  Creditor,  though  they  gave  him 
Money  for  that  Purpofe. 

II.  If  the  fault  be  committed  in  any  Port,   Haven, 
River,  or  Creek,  or  any  other  place  which  is  infra  Corpus 
Cmilatus,   the  Common   Law  fhall  have]  Jurifdidion  to 
anfwer  the  party  damnified,  and  not  the  Admiralty  \    but  vide  5.  Co. 
if  the  fame  be  committed /z^p^r  altum  mare^  the  Admiralty  io7.7i/».  8qi, 
fhall  have  Jurifdi6lion  of  the  fame  ;    yet  if  it  be  on  a  9»^* 
place  where   there  is   divifum  imperium^    then  according 
to  the  Flux  or  Reflux  the  Admiralty  may  challenge  -, 
the  other  of  Common  Right  belonging  to  the  Common 

The  Common  Law  is  the  over-ruling  Jurifdidlion  In  L.  Raymond 
this  Realm  •,  and  they  are  to  intitle  themfelves  well  who  ^7^- 
would  draw  a  thing  out  of  it. 

And  therefore  fo  foon  as  Merchandizes  and  other  Com- 
modities are  put  aboard  the  Ship,  whether  fhe  be  riding 
in  Port,  Haven,  or  any  other  part  of  the  Seas,  he  that 
is  Exercitor  Navis  is  chargeable  therewith  ,  and  if  the  fame 
be  there  loft  or  purloined,  or  fuftain  any  damage,  hurt 
or  lofs,  whether  in  the  Haven  or  Port  before,  or  upon  the  F.  N^uf.  caup. 
Seas  after  flie  is  in  her  Voyage,  whether  it  be  by  Mariners  A^-  ^^g-  »• 
or  by  any  other  through  their  permifTion,  he  that  is  Ex-  ^^'^'^>h^>7\ 
ercitor  Navis  muft  anfwer  the  damage,  for  that  the  very 
lading  of  the  Goods  aboard  the  Ship,  does  fubjed:  the 
Mafler  to  anfwer  the  fame  :    And  with  this  agrees  the     ju,  j  ^ 
Csmmon  Law,  where  it  was  adjudged.  That  Goods  being  ^^^,^^'2^^^ 
fent  aboard  a  Ship,  and  the  Mafter  having  figned  his  Bills  i  hn,  190} 
of  Lading  for  the  fame,  the  Goods  were  ftowed,  and  in  23?; 
the  night  divers  Perfons,  under  the  pretence  that  they  ^  ^^^*  ^^^' 
yere  Prefs-m.afters,  entered  the  Ship  and  robbed  her  of  \^^^  'jj^*, 

P  4      ""  thofe  ?35.! 

232  fliPatterS  of  ^i^ipS.        Book  II. 

thofe  Goods  -,  the   Merchant  brought  an  Adlion  at  the 
Common  Law  againft  the  Mafter ;  and  the  Queftion  was, 
Whether  he  fhould  anfwer  for  the  fame  ;    For  it 
ledgcd  on  his  part,  That  there  was  no  default  or  negli- 
gence in  him,  for  he  had  a  fufficient  guard,  the  Gocxls 
were  all  lock'd  up  under  Hatches,  the  Thieves  came  as 
PrcfS'Mqfte7's^  and  by  force  robb*d  the  Ship  ;  and  that 
f  The  which  the  fame  was  vis  major  f,  and  that  he  could  not  have 
the  Civil  Law  prevented  the  fame.     And  laftly,  That  though  he  was 
times  allow-    c^l^^d  Mafter  or  Exercitor  Navis^  yet  he  had  no  fhare  ia 
the  Ship,  and  v/as  but  in  the  Nature  of  a  Servant,  ading 
for  a  Salary.     But  notwithftanding  it  was  adjudged  for 
*  Rey.  105.^  the  Plaintiff,  for  at  his  peril  he  muft  fee  that  all  things 
^'^}n  l^^^  be  forth-coming  that  are  delivered  to  him,  let  what  acci- 
40^84/^.     ^^"^  foever  happen  -,    (the  ad  of  God,  or  an  Enemy, 
Mo.  876.        perils  and  dangers  of  the  Seas  only  excepted)  but  for  Fire, 
Hoh.  17,  18.  Thieves  and  the  like,    he  muft  anfwer,  and  is  in  the  ca- 
Poph.i-jS,      ^        of  a  *  Common  Carrier;  and  that  though  here- 
Cro^Jac.1^2.  ceives  a  Salary,  yet  he  is  a  known  and  publick  Officer, 
189,330,331.  and  one  that  the  Law  looks  upon  to  anfwer,  and  the 
Sa/k.  388.      Plaintiff"  hath   his  Eledion  to  charge  either  Mafter  or 
1  Si^.  3  .       Owners,  or  both  at  his  pleafure,  but  can  have  but  one 

Debet  Exerci-    s^tisfadion. 

iQr  omnmm 

nautarum  fud- 

rum    (I've  liheri  Jintjive  fer^vi^  faBiun  prajiare^   nee  immerilo  faSlum  eorum  ptyejlaty  cum 

ipfe  eos  fuo  periculo  adhibuerit :  Sed  non  alias  prerjlat  quamji  in  ipfa  nave  damnum  datum 

(ity  caterum  fi  extra  navirriy  licet  anautis,  ?ion prajlabit,     Naut.  Caup.  Stabilit.  Leg.}, 

Sea,  7.  debet  Exercitor, 

.iu  i 

Eod.  Leg.  de-        If  a  Mafter  fhall  receive  Goods  at  the  Wharf  or  X^, 
hst Exercitor.   or  fhall  fend  his  Boat  for  the  fame,  and  they  happen  to 

be  loft,  he  ftiall  likewife  anfwer  both  by  the  Marine  Law 

and  the  Common  Law, 

Mayor  £5?  Com,  de  London  againft  Hunt, 

Error  of  a  Judgment  in  B.  R.  in  Affumpfit  brought  by 
the  Mayor  and  Commonalty  againft  Hunt^  where  they  de- 
clared of  a  Cuftom,  That  they  and  their  Predeceffors,  Ma- 
jors, i^c.  had  of  every  Mafter  of  a  Ship  8  s,  per  Tun  for 
every  Tun  of  Cheefe  brought  from  any  place  in  England 
to  the  Port  of  London^  ab  oriente  de  London-Bridge^  in  the 
pame  of  Weighage  \  and  that  the  Pefendant  being  M^- 

U AP.  II.      fl^afietiS  of  ^Uv^.  233 

ler  of  a  Ship,  had  brought  to  the  Port  of  London  fo  ma- 
t,'  'funs,  which  at  that  rate  came  to  fo  much,  which  he 
Hath  not  paid  ;  upon  non  AJJumpfit,  Verdid  and  Judg- 
f  ment  for  the  Plaintiff.  Upon  which  Hunt  the  Defendant, 
• 'ouf^ht  a  Writ  of  Error,  and  two  Errors  were  afligned. 
«i  I.  That  the  Adlion  did  not  lie  againft  the  Mailer,  but 
'  that  the  Duty  was  due  from  the  Merchants,  Ow-ners  of 
y  the  Goods  •,  but  the  Judgment  was  affirmed,  for  that  the 
lifter  is  intruded  with  the  Goods,  and  hathaRecom- 
5!  pence  from  the  Merchants  for  bringing  the  Goods,  and  is 
i  refponfible  for  them,  and  therefore  fhall  be  charged  for 
'i  the  Duty  *,  and  it  would  be  infinite  to  fearch  for  the  Ow- 
^  nersof  the  feveral  Goods,  which  are  all  in  the  Cuftody  of 
\  the  Mafter  who  brought  them  into  Port,  and  therefore  he 
i(  ihall  be  charged.     3.  Levinz  '^y. 

I  III.  If  Goods  be  laden  aboard,  and  after  an  Embargo  Digeji.  lih,  9. 
orReftraint  from  the  Prince  or  State  comes  forth,  and  ''^-2.1^^.61. 
then  he  breaks  Ground,  or  endeavours  to  fail  away,  if  any 
ji  damage  accrues,  he  muft  be  refponfible  for  the  fame.  The 
reafon  is,  becaufe  his  Freight  is  due  and  muft  be  paid  ; 
nay,  although  the  very  Goods  be  feized  as  lona  contra- 

A  Ship  was  hired  to  J.  S,  in  England  to  freight  at  zVem,  242: 
3  /.  10  s.  per  Tun  to  Bourdeaux  ;  then  an  Embargo  is 
laid  •,  (he  afterwards  proceeds  to  Bourdeaux  ;  the  Mafter, 
not  difcovering  his  firft  Agreement,  agrees  with  the  Cor- 
refpondents  there  of  J.  S.   to  allow  him  6  /.   10  .f.  per 
Tun  ;   upon  this  laft  Agreement  he  recovered  at  Law  5 
and  Equity  would  not  relieve  ;    becaufe  the  Performance 
of  the  firft  Agreement  was  hindered  by  the  Embargo. 
||      IV.  He  muft  not  fail  in  tempeftuous  Weather,  ncr  put 
forth  to  Sea  without  having  firft  confulted  with  his  Com- 
pany* ;  nor  muft  he  ftay  in  Port  or  Harbour  without  juft  *  Leg.  Oleron, 
caufe  when  a  fair  wind  invites  his  departure.  7«^^-  2* 

V.  He  muft  not  over-charge  or  lade  his  Ship  above 
the  Birth-mark,  or  take  into  his  Ship  any  Perfon  of  an 
obfcure  and  unknown  Condition,    without  Letters  of  fafe  -^'^^  iS/f.  6. 

jVL  Nor  ought  he  to  lade  any  of  his  Merchant's  Goods  Leg.  Rhod.  ^ 
aboard  any  of  the  King's  Enemies  Ships  (admitting  his  Leg,  quum 
own  Veffel  leaky  or  difabledj    without  Letters   of  fafe  ^^^7""'  ^*  '^^ 
Co(^du6t  i  otherwife  the  fame  may  be  made  Prize,  and  stat^'±H°'^L 

he  20.  *       °   * 

234  W^^tt&  Of  %i^ipg.        Book  If. 

he  mufl:    anfwer    the    Damage  that   follows  the  Az. 

Siat,  15H.6.       Nor  fliall  he  come  or  fneak  into  the  Creeks  or  other 
(^.  S.  places,  when  laden  homewards,  but  into  the  King's  great 

Ports,   (unlefs  he  be  driven  in  by  Tempeft)  for  otherwife 

he  forfeits  to  the  King  all  the  Merchandize,  and  therefore 

muft  anfwer. 
I  EL  e.  II.  §.      VII.  Nor  ought  he  to  ihip  any  Merchandizes,  but  only 
^'        ^       at  the  Puhlick  Ports  and  Keys. 

]^ii.\,  14!        tl^  "^"^  "^^  ^^^^  ^"y  prohibited  or  unlawful  Goods, 
19J?/.  cap.'^,  whereby  the  whole  Cargo  may  be  in  danger  of  Confifca. 
i,2F.^M5.  tion,  or  atleaft  fubjed  to  feizure  or  furreption. 
jjac.cap.z^.      He  may  not  fet  fail  without  able  and  fufficient  Mari- 
12^  ar.z.cap.  ^^^^  ^^^^  ^^^  quality  and  number. 

By  ^  G.  2.  ch,  20.  Matters  of  VefTels  outward-bound 
are  not  to  receive  on  board  their  Gunpowder,  either  as 
Merchandize  or  Ammunition  (the  King's  Service  ex- 
cepted) before  they  be  at,  over-againft,  or  below  Black- 
Wall^  on  forfeiture  of  5  /.  for  every  50  Ih,  Weight,  i3c. 
By  the  fame  Ad  the  Mailers  of  Ships  coming  into  the 
Thames  fhall  land  their  Powder  before  their  Arrival  at 
Blackwalls  or  within  twenty-four  Hours,  if  Weather 
■  permit,  after  they  come  to  anchor  there,  or  at  the  Place 
of  unloading  •,   forfeiture  as  in  foregoing  Sedion. 

Keeping  Guns  lliotted,  firing  a  Gun  above  Bkckwd 
before  Sun-rifing  or  after  Sun-fetting,  are  alfo  prohibited 
by  the  fame  Ad,  but  under  fmaller  Penalties,  viz,,A 
Gun  fhotted  5  J.  a  Gun  fired  10  s.  melting  Pitch  there 
on  board  is  liable  to  a  Penalty  of  5  /. 

Search  may  be  made  by  an  Elder-Brother  of  Tmity- 

Houfe^  impov/ered  under  the  Corporation  Seal ;  and  notper- 

mittinghim  to  make  due  fearch  is  liable  to  a  Penalty  of  5/. 

VIII.  He  may  not  ufe  any  unlawful  Colours,  Enfigns, 

9  Proclama-    Pendants,  Jacks  or  Flags  *,  whereby  his  Ship  or  Lading 

^ion  Sept.  25.  may  incur  a  Seizure,   or  the  Cargo  receive  any  detriment 

■f'fCar.2.  or  damage. 

fropttrf""  He  mufl  not  fuffer  the  Lading  to  be  ftoln  or  Imbezzled ; 
Leg.  Rhod.  if  the  fame  be,  he  mufl  be  refponfible,  unlefs  it  be  where 
D.  Leg.  in  fin.  there  is  vis  major  ;  as  if  he  be  affaulted  at  Sea  either  by 
Is' Leg.  ft  ^en-  Enemies,  Ships  of  Reprize,  or  Pirates,  there,  if  no  Fault  or 
W  S'zT  negligence  was  in  him,  but  that  he  performed  the  part 
^^e.Naui  of  an  honeft,  faithful,  and  valiant  man,  he  fball  be  ex- 
Caup.  culecl 


j  Chap.  H-        fl^aSetSE  Of  ®l)tp^*  235 

I  cufed.  Yet  it  hath  been  adjudged.  That  if  a  Merchantman  1  ^^«.  190, 

I  ijes  in  a  Port  or  Haven,  and  a  Pirate,  Sea- Rover,  or  other  ?,38. 

I  xhicves  enter  her  and  over-power  her  Men,  and  then  rob  i^Mo7.%1^^' 

her,  yet  the  Mafter  muft  be  refponfible  •,  but  if  an  Enemy  zLevinz.  69. 

enter  and  commit  the  depredation,  there  the  Mafter  is  ex- 

cofed.     2  Keble  S66,  3  Kek  72,  112,  132,  135. 

IX.  He  muft  not  carry  any  counterfeit  Cocquets  or  i^R.z.eap.g: 
other  fid:itious  and  colourable  Ship-Papers  to  involve  the  {^S-  ]'^°^-^ 
Goods  of  the  Innocent  with  the  JNocent.  cufand. 

Nor  muft  he  refufe  the  payment  of  the  juft  and  ordinary  Secmd.fin.Leg, 
Duties  and  Port-charges,  Cuftoms  and  Imports,  to  the  ultadLeg.quum 
hazard  of  any  part  of  his  Lading  ;  yet  if  he  offers  that  P^P^^^^^^-  ^* 
which  IS  juft  and  pertams  to  pay,  then  he  is  exculed.  i      oieron. 

X.  He  muft  not  fet  fail  with  infufficient  Rigging  or  24.  Per  Leg, 
Tackle,  or  with  other  or  fewer  Cables  than  is  ufual  and pub. 
requifite,  refped  being  had  to  the  burden  of  the  Veflel : 
And  if  any  damage  happens  by  the  delivery  of  the  Goods 
into  the  Lighter,  as  that  the  Ropes  break,  and  the  like  ; 
there  he  muft  anfwer  •,  but  if  the  Lighter  comes  to  the 
Wharf  or  Key ;  and  then  in  taking  up  the  Goods,  the 
Rope  breaks,  the  Mafter  is  excufed,  and  the  Wharfinger 
is  liable. 

If  fine  Goods,  or  the  like,  are  put  into  a  clofe  Lighter, 
and  to  be  conveyed  from  the  Ship  to  the  Key,  it  is  ufual 
there,  that  the  Mafter  fend  a  competent  number  of  his 
Mariners  to  look  to  the  Merchandize,  if  then  any  of  the 
Goods  are  loft  and  imbezelled,  the  Mafter  is  refponfible*,  *  Pafek  26 
and  not  the  Wharfinger ;    but  if  fuch  Goods  are  to  be  Car.  mVA  at 
fent  aboard  a  Ship,   there  the  Wharfinger,  at  his  Peril,  f^^f^^]'^' 
muft  take  care  the  fame  be  prefer ved.  *   '*^*    ^  ■' 

XI.  After  his  arrival  at  Port,  he  ought  to  fee  that  the 
Ship  be  well  moored  and  anchored  ;    and  after  reladed, 
not  to  depart  or  fet  fail  till  he  hath  been  cleared  ;  for 
if  any  damage  happens  by  reafon  of  any  fault  or  neg-  i^EH^.cap.q. 
ligence  in  him  or  his  Mariners,   whereby  the  Merchant  14  Car.  z. 
or  the  Lading  receives  any  damage,  he  muft  anfwer  the  c^p-  »i- 

XIL  And  as  the  Law  afcribes  thefe  things  and  many 
more  to  him  as  faults,  when  committed  by  him  or  his 
Mariners  in  Ports,  fo  there  are  other  things  which  the 
Law  looks  upon  to  be  as  faults  in  him  in  his  Voyage, 
ivhen  done  :  ^     ' 


236  ^a^m  of  ©l^tpjS*  Book  II. 

pigefi.  L  lum       A?  if  he  deviates  in  his  courfe  without  jufl:  caufeV  br 

tn  dehito  F.  de  fle^j-g  ^  dangerous  and  unufual  way,  when  he  may  have  a 

more  feciire  pafTage  -,  though  to  avoid  illegal  impofitions, 

he  may  fomewhat  change  his  courfe  ;  nor  may  he  fail  by 

places  infefted  with  Pirates,  Enemies,  or  other  places  no- 

torioufly  known  to  be  unfafe  ;   nor  engage  his  Veffel  a'*' 

JJb.i.  mong  Rocks  or  remarkable  Sands,  being  thereto  not  ne- 

WW  '''''    ceflitated  by  violence  of  Wind  and  Weather,    or  deluded 

^-^^^-^     •        by  falfe  Lights. 

The  Mafler  Ihall  not  be  anfwerable  for  the  Contrads 
of  their  Mariners  ;  but  they  may  be  detained  for  their 

XIII.  By  the  Marine  Law,  he  that  will  charge  a  Ma- 
iler with  a  Fault,  as  in  relation  to  his  Duty,  muft  not 
think  that  a  general  charge  is  fufficient  in  Law,  but  he 
ought  to  afTign  and  Ipecify  the  very  fault  wherewith  he  is 
fo  charged. 

So  he  that  will  infer,   that  fuch  or  fuch  a  fad  difafter 

hath  happened  or  been  occafioned  by  reafon  of  fome  fault 

in  the  Mariners  ;  muft  not  only  prove  the  fault  itfelf,  but 

muft  alfo  prove  that  that  fault  did  difpofe  tofuchi'fel 

event ;  or  that  fuch  a  misfortune  could  not  have  happened 

without  fuch  a  fault  precedent. 

Jnfant  Matter      If  an  Infant  being  Mafter  of  a  Ship,  by  Contract  with 

cfaShip,  Ha-  another,  take  upon  him  to  bring  certain  Goods  from  5/ 

^^^  h  ^M^^  Chriftophers  to  England,  and  there  to  deliver  them,  but 

rftlty.  delivers  them  not  according  to  agreement,    but  waftes 

and  confumes  them,  he  may  be  fued  in  the  Admiral  Court, 

^Itho'  he  be  an  Infant ;  for  this  Suit  is  but  in  Nature  of  a 

Detinue  or  a  Trover  and  Converfion  at  the  Common  Law; 

and  a  Prohibiton  denied  for  that  Caufe.     Fumes  againft 

Smith.   I  Rolls  Ahr.  530. 

XIV.  When  Voyages  are  undertaken,  the  Mafter  is 
there  placed  in  by  the  Owners,  and  they  ought  to  make 

f  Recepltfal-  good  the  Mafter's  fad  and  deed  ;  f  and  therefore  as  the 
'vum  fore,  u-  whole  care  and  charge  of  Ship  and  Goods  are  committed 
%Zt!l7^  to  the  Mafter,  it  is  the  prudence  of  the  Owners  to  be 
TiZJi^nl"^^  careful  who  they  will  admit  Commander  of  their  Ship, 
ftnt,anetftnon  fince  their  ac^ions  fubje6l  them  to  anfwerthe  damage,  or 
fvit  ei  ajfigna-  whatever  Other  Ad  he  fhall  do  in  reference  to  this  Imploy; 
Tpfo  ^uodTZ  ^"^  therefore  he  can  freight  out  the  Veffel,  take  in  Goods 
^^vimZAjrljint  ^.nd  PaflengerSj  mend  and  furnifh  the  Ships  and  to  that 


i  Chap.  H.        ^aftm  Of  ^i)ipg.  237 

I  ggfe^cj.^  if  need  be,  in  a  ftrange  Country  he  may  borrow  recept^  ^uiden^ 
%  Money,  with  advice  of  his  Mariners,  u^n  fome  of  the  ^"^V^^r.T 
i  Tackle,  or  fell  fome  of  the  Merchandize.     If  part  of  the  pdiam^u^  i„ 
i  Goods  fhall  be  fold  in  fuch  neceflity,  the  higheft  price  that  na^vim  Ulat^ 
\\  the  remainder  are  fold  for,  mufl  be  anfwered  and  paid  xofi^^U  ^  faa- 
\  the  Merchant  -,    after  which  the  Merchant  mufl:  pay  for  ZZltZ- 
\   the  Freight  of  thofe  Goods  as  well  as  for  the  remainder,  y?^,.^  debet,  Jed 
Ijg.  Oleron.  i.    But  if  the  Ship  in  the  Voyage  happens  to  bf  reaomm, 
be  caft  away,    then  only  fhall  be  tendered  the  price  that  ^-  ^^^^^ 
the  Goods  were  bought  for.  ^       ^^f\^  7.i. 

By  the  Common  Law^  the  Mailer  of  a  Ship  could  not  im-  recepit^ 
pawn  the  Ship  or  Goods,  for  any  Property  either  general 
orfpecial  was  not  in  him,  nor  is  fuch  power  given  unto 
him  by  the  conftituting  of  him  a  Mafter. 

Yet  the  Common  Law  hath  held  the  Law  of  Oleron  reafo-  i-^g-  Oleron, 
jiable,  That  if  a  Ship  be  at  Sea  and  takes  leak,  or  other-  ''V^' 
wife  want  Victuals  or  other  Neceffaries,    whereby  either  lat ch  2\z.  ' 
herfelf  be  in  danger,  or  the  Voyage  may  be  defeated,  that  Noy.  95. 
in  Tuch  cafe  of  neceflity  the  Mafter  may  impawn  for  mo-  ^'>'  9'^* 
neyor  other  things,  to  relieve  fuch  extremities,  by  imploy-  ^^^'  ^"^^'^• 
ing  the  fame  to  that  end  ;  and  therefore  he  being  the  Per-  ^^/^  ^^.pi.y, 
fon  trailed  with  the  Ship  and  Voyage,  may  therefore  rea- 
fonably  be  thought  to  have  that  power  given  to  him  im-  Lex  Mercator 
plieitly,  rather  than  to  fee  the  whole  loft.  102,  122. 

A  Ship  put  into  Bojlon  in  New-England^  and  there  the 
Mailer  took  up  NeceiTaries,   and  gave  a  Bill  of  Sale  by 
way  of  Hypothecation,  and  there  being  a  Suit  againft  the  SalL'^!;.pl.g. 
Ship  and  Owners  to  compel  Repayment,   a  Prohibition  ^ 
was  prayed  -,  whereupon  the  Court  held,  that  the  Mafter 
could  not  by  his  contradl  make  the  Owners  perfonally    *    ^^"^°^  ' 
liable  to  a  Suit,  and  therefore  granted  a  Prohibition  as  to  ^ 
them,  but  refufed  it  as  to  the  Ship  ;   for  the  Mafter  can 
have  no  credit  but  upon  giving  fecurity  by  Hypotheca- 
tion :  And  that  it  was  unreafonable  for  them  to  prevent 
the  Court  of  Admiralty's  giving  a  Remedy,   when  they 
could  give  none  themfelves. 

But  a  Mafter,  for  any  debt  of  his  own,  cannot  Impawn  L-  Raymsnd, 
or  Hypothecate  the  Ship,  ^r.  for  the  fame  is  no  ways  9^4-  ^-  ^' 
liable  but  in  cafe  of  neceflity  for  the  relief  and  compleat- 
ing  of  the  Voyage. 

Nor  can  he  fell  or  difpofe  of  the  fame  without  an  Au-  Irfj^^Yk^/l^' 
thority  or  Licence  from  the  Owners  3  and  when  he  does  ^V.5 30.^-2. 



238  apaaet0  of  ©l^tpgE.  Book  Ii) 

Impawn  or  Hypothecate  the  Veflel.  or  Furniture,  he  ought 
to  have  the  corient  and  advice  of  his  Mariners. 
Peer  Williams      A  Ship  being  repaired,  i^c,  m  t\iQ  names y  isnotli- 
367.  fee  L.    able,  but  the  Owners. 

^^j«.Wi52,  XV.  And  where  the  Ship  is  well  engaged,  fhe  is  for 
ever  obliged,  and  the  Owners  are  concluded  thereby  till 

But  in  regard  Mafters  might  not  be  tempted  to  engage 
the  Owners,  or  infettcr  them  with  fuch  fort  of  obligati- 
ons,  but  where  there  is  very  apparent  caufe  and  neceflity 
they  feldom  fuffer  any  to  go  Skipper  or  Mailer,  but  he 
that  hath  a  ihare  or  part  in  her  -,  fo  that  if  Monies  or 
Provifions  be  taken  up  he  muft  bear  his  equal  Ihare  and 
proportion  with  the  reft. 
Judgment,  O-      Nor  Can  the  Mafter  on  every  cafe  of  neceflity  impawn 
inon,  cap,  22.  the  VefTel  or  Furniture ;  for  if  fhe  be  Freighted,  and  ht^ 
and  the  Owners  are  to  join  in  the  laying  in  of  the  Provi- 
fions for  the  Voyage,  and  perhaps  he  wants  money,  (a 
great  fign  of  neceflity)  yet  can  he  not  impawn  the  Veflel  or 
Furniture,  any  other  or  further  than  for  his  own  part  or 
Ihare  in  her,  the  which  he  may  transfer  and  grant  as  a  noan 
may  do  an  eighth  or  fifth  part  in  Lands  or  Houfes :  But 
fuch  obligation  of  the  Veflfel  muft  be  in  Foreign  parts,  or 
places  where  the  calamity  or  neceflity  is  univerfal  on  the 
Veflfel,  that  will  oblige  all  the  Owners. 
L.  ttaymand         Where  a  Ship  was   hypothecated  at  Amfterdam^  the 
577*  S?^-       Party  was  allowed  to  fue  in  the  Admiralty  here. 

XVI.  If  the  Veflfel  happens  af(:er wards  to  be  wreck!  or 
caft  away,  and  the  Mariners  by  their  great  pains  and  care 
recover  fome  of  the  ruins  and  lading,  the  Mafter  in  tha^ 
cafe  may  pledge  the  fame,  the  product  of  which  he  may 
diftribute  amongft  hisdiftreflfed  Mariners,  in  order  to  the 
Judgment,  O-  carrying  them  home  to  their  own  Country :  But  if  the 
i^ron.  cap.  3,  jy[ariners  no  way  contributed  to  the  Salvage,  then  their 
reward  is  funk  and  loft  with  the  Veflfel.  And  if  there  be 
any  confiderable  part  of  the  Lading  preferved,  he  ougbr 
not  to  difmifs  the  Mariners,  till  advice  from  the  Ladcrs 
or  Freighters  s  for  other  wife  perchance  he  may  be  macb' 

If  Merchants  freight  a  Veflfel  at  their  own  charges,  and 
fet  her  to  Sea,  and  fhe  happens  afterwards  to  be  Wea- 
ther-bound, the  Mafter  may  impawn  either  the  Ship  or 


J  Chap.  II.       ^&tim  Of  %^ipg.  239 

k  L^i^S  ^^  ^'^^  pleafure,  or  at  leaft  fuch  as  he  could  cove-  ^^i-  Oleron. 
'niently  raife  monies  on,    rather  than  fee  the  whole  Voy-  ^^^'  ^^' 
il  age  loft.    And  if  he  cannot  pawn  the  Lading,   he  may 
■fell  the  fame,   that  is,    fo  much  as  is  neceffary  5    in  all 
ii  which  cafes  his  adl  obliges. 

However,  Orders  and  Inftrudllons  are  as  carefully  to 
be  look'd  upon  and  followed  as  the  Magnet. 
I    XVII.  He  is  not  to  import  into,  or  export  out  of  any  The  like  pro-* 
i  the  Englijh  Plantations  in  Jfta^  Africa^  or  America.,  but  in  ^.^^^°"  °"  ^^^ 
i  hglijh  or  Irijh  Veflels,    or  of  the  VelTels  built  and  be-  for  Ss  of' 
J  longing  to  that  Country,  Ifland,  Plantation,  or  Territo-  Mufco'vy,  and 
j  ry ;  the  Mafter  and  3  fourths  of  the  Mariners  to  be  En-  of  tiie  Domi- 
-  ^/^,  upon  forfeiture  of  Ship  and  Goods;  and  if  other-  Ji!°"!  ^"^ 
-wife,  they  are  to  be  look'd  upon  as  Prize,  and  may  be  ofThe°c^!zr- 
i  feiz*d  by  any  of  the  King's  Officers  and  Commanders,  and  So  likewife  of 
I  to  be  divided  as  Prizes,  according  to  the  Orders  and  Rules  Currants  be- 
I  of  the  Sea.  ^         ^  S'LVtw- 

All  Goods  of  the  Growth  of  his  Majefty's  Plantations  ritorkror  "' 
are  not  to  be  imported  into  England.,  Ireland^  or  Wales^  Dominions. 
Ifland  of  Jerfey  or  Guernfey^  but  in  fuch  Veflfels  as  truly  ^^te^  In  cafes 
belong  to  Owners  that  are  of  England^  Ir eland ^  Wales ^  Jer-  ^^  ^cknefs,  ^ 
/(y,  or  Guernfey.^  and  3  fourths  at  leaft  of  the  Mariners  are  ^y^  f^'iygs  jj^^ 
to  be  Engli/h^  upon  forfeiture  of  Ship  and  Goods.  Claufe  as  to 

.The  Goods  and  Wares  of  thofe  Plantations,  and  brought  Mariners, 
iii  fuch  manner  as  aforefaid,  muft  be  brought  from  thofe 
very  Countries  of  their  feveral  produc^lions  and  growths, 
or  from  the  Ports  where  they  are  ufually  fhipped  out,  on. 
forfeiture  of  Ships  and  Goods. 

XVIII.  No  Ship  to  go  from  Port  to  Port  in  England^,  That  is  thofe 
Ireland^  JVales^  Jerfey.,  or  Guernfey^  or  Berwick^  unlefs  the  jj^^^  ^°  "°^ 
Owners  are  Denizens  or  Naturalized,  and  the  Mafter  and  /J/a|,  7°;-^ 
3  fourths  to  be  Englifh.  Weljh.ox  thofe 

All  Owners  muft  fwear  that  their  Veftels  or  Ships  are  of  Jerfey^  or 
their  own  proper  Ships  and  VefTels,  and  that  no  Foreigner  ^^^^nf^* 
hath  any  fhare  or  part  in  her,  and  muft  enter  the  fame ;  and 
that  (he  was  bought  for  a  valuable  confideration,  Bonafide^ 

XIX.  Nor  to  bring  in  any  Goods  from  any  place,  but 
what  are  of  the  growth  of  that  very  Country,  or  thofe 
places  which  ufually  are  for  the  firft  fhipping,  on  pain  of 
forfeiture  of  their  VefTel  and  Furniture. 

This  doth  not  extend  fo  far,  but  that  Mafters  may  take 
m  Goods  in  any  part  of  the  Levant  or  S freights^  although 

they       \ 

24^  iSPaffetjS  of  &i)ip?. 

they  are  not  of  the  very  growth  of  the  place,  fo  thatthev 
be  imported  in  Englijh  Ships,  3  fourths  Englijh  Mariners* 
12  Car,  2.     So  likewife  thofe  Ships  that  are  for  India  in  any  of  thofc 
€ap.  \  8.  3gas  to  the  Southward  and  Eaftward  of  the  Cape  of  Good- 

Hope,  although  the  Ports  are  not  the  places  of  their  very 

Any  People  o^ England  may  Import  (the  Mailer  and  Ma- 
riners  3  fourths  EngUjIo)  any  Goods  or  Wares  from  ^ain^ 
Portugal^  Azores^  Madeira^  or  Canary  I  Hands ;  nay  in  Ships 
that  are  not  Englijh  built.  Bullion  may  be  imported  j  fo 
likewife  in  thofe  that  are  taken  by  way  of  Prize,  Bonajidi. 

But  Sugars,  Tobacco,  Cottons,  Ginger,  Indicoes,  Fu- 
flick,  or  any  other  dying  Wood  of  the  growth  of  his  Ma- 
jefly's  Plantations,  to  be  fiiipped,  carried  or  conveyed 
from  any  of  the  Englijh  Plantations,  are  to  be  carried  to 
no  place  in  the  World,  but  are  to  come  diredly  for  Englady 
Ireland^  WaleSy  or  Berwick^  upon  pain  of  forfeiture  of  Ship 
and  Goods  ;  and  the  Mafter  is  to  give  Bond  with  one  Se- 
curity in  1000/.  if  the  Ship  be  under  the  burden  of  100 
Tuns,  and  2000/.  if  above;  that  upon  Lading  he  brings 
his  Shipdire6i:ly  into  England,,  Ireland,  Wales,  or  Berwick^ 
(the  danger  of  the  Seas  excepted)  fo  likewife  they  are  to 
do  the  fame  for  the  Ships  that  fhall  go  from  the  Plantati- 
ons, to  the  Governor  of  fuch  Plantation,  upon  forfeiturcof 
the  Ship  and  Goods. 

By  a  late  Ad  (3  G.  2.  c.  28  )  Rice  is  permitted  tobc 
Carried  South  of  Cape  Finijierre  without  firft  coming  to 
12  Cor.  2.         XX.  When  the  Mafter  fhall  arrive  at  Grav'ejend,  he  Ihall 
f.  iS.  not  be  above  three  days  coming  from  thence  to  the  placiof 

difcharge  ;  nor  is  he  to  touch  at  any  Key  or  Wharf  till  he 
comes  to  Chejier^s  Key,  unlefs  hindered  by  contrary  Winds, 
or  draught  of  Water,  or  other  juft  impediment  to  be  allow- 
ed by  the  Officers :  And  likewife  he  or  his  Purfer  are  there 
to  make  Oath  of  the  Burden,  Contents  and  Lading  of  his 
Ship,  and  of  the  Marks,  Number,  Contents,  and  Qualitirt 
of  every  parcel  of  Goods  therein  laden  to  the  bed  of  ins 
knowledge  j  alfo  where  and  in  what  Port  (he  took  in  her 
Lading,  and  what  Country  built,  and  how  manned,  who 
was  Mafter  during  the  Voyage,  and  who  the  Owners  •,  and 
in  Out- Ports  muft  come  up  to  the  place  of  unlading,  asrtflC 
condition  of  the  Port  requires,  and  make  Entries,  onpj/fi 
of  100/.  Nor 

Nor  is  fucli  a  Mailer  to'  lade  aboard  any  Goods  out- 
wards to  any  place  whatfoever,  without  entring  the  Ship 
at  the  Cullom-Houfe,  her  Captain,  Mailer,  Burden, 
Guns,  Ammunition,  ^nd  to  what  place  llie  intends,  and 
before  departure  to  bring  in  a  Note  under  his  hand  of 
every  Merchant  that  fhall  have  laid  aboard  any  Goods, 
toc^ether  with  the  marks  and  numbers  of  fuch  Goods,  and 
befworn  as  to  the  fame,  on  pain  of  100  /. 

No  Captain,  Mailer,  Purfer  of  any  of  His  Majeily's 
Ships  of  War  fliall  unlade  any  Goods  before  Entry  made, 
on  pain  of  100  /. 

Note,  There  is  a  Liil"  of  all  Foreign  built  Ships  in  the 
Exchequer.  No  F'oreign  Ship  not  built  in  any  of  His 
Majeity's  Dominions  of  J/m,  Africa,  or  America  after 
OM.  I.  1662.  and  exprefsly  named  in  the  Lift,  fhall  eri- 
joythe  Privileges  of  a  Ship  be) on ging  to  £??^to^  or  Jr^- 
knd,  although  owned  and  manned  by  Englijh,  except  only 
fuch  as  are  taken  by  way  of  reprize,  and  condemnation 
made  in  the  Admiralty  as  lawful  Prize.  None  but  Eng- 
Ufh  and  Irijh  Subjeds  in  the  Plantations  are  to  be  account- 

<W  Ehgiifi. 

''■  XXI.  If  the  Mailer  fhall  have  Freight  from  Port  to  Port 

:within  the  Realm,    he  ought  to  have  Warrant  for  the 

'fame,  on  pain  of  forfeiture  of  the  Goods  *,  and  he  is  to 
take  forth  a  Cocquet,  and  become  bound  to  go  to  fuch 

'Port  defigned  for,  and  to  return  a  Certificate  from  the 

^ihief  Officers  of  that  Port  where  the  fame  is  defigned  for, 
and  difcharged  within  fix  Months  from  the  date  of  the 


XXII.  But  from  the  Netherlands,  or  Germany,  there 

■^tnay  not  be  imported  any  fort  of  Wines  (other  than  Rhe« 
nifh)  Spicery,  Grocery,  Tobacco,  Pot-afhes,  Pitch,  Tar, 
Salt,  Rofin,  Deal-boards,  hard  Timber,  Oil,  or  Olives, 

%  ^ny  manner  of  Ships  whatfoever. 

it  might  not  feem  impertinent,  that  this  latter  pare 
which  is  abridged,  in  reference  to  matters  publick,  fhould 
be  inferted  -,  for  that  fometimes  it  may  happen  that  an  ho- 

'ned  and  well  meaning  Mailer  or  Skipper  might  innocent- 
ly involve  and  hazard  the  lofs  of  his  Ship  by  committing 
a6ls  againfl  Laws  pofitive  and  prohibitory  -,  and  though 
Mailers  and  Mariners,  tiua  tales,  be  not  fo  exquifite  as  to 
know  all  that  does  belong  to  their  Duties,  or  at  leafl  that 

0  '  which 


which  the  Law  lays  incumbent  on  their  Shoulders ;  yet 
for  that  moft  of  them  have  fome  fmall  glimmerings  of  the 
fame,  fuch  hints  in  matters  publick  as  well  as  private 
may  not  only  be  of  fome  advantage  to  them,  but  alfo  to 
Merchants,  who  always  upon  the  Mifcarriages  of  the 
Mafters,  prove  the  greateft  Sufferers  ;  the  offenders,  for 
the  moil  part,  proving  not  fufficiently  folvent. 

CHAP.      III. 

iSDf  ^avintv&y  tljctr  federal  i^ftim  m 
gimmunitiegf,  anD  of  :i5srretri?  committeii 
fir  t1^tm. 

I.  7Z-^  fevBral  Marine  Oficers  on 
Ship-board  J  and  their  Charges  and 

II.  Of  the  Majler  s  ponjoer  and  au- 
thority onjer  them^  as  in  relation 
to  punijhing  or  otherivi/e^ 

III.  fhe  Duty  that  Mariners  o-we 
to  each  other y  and  they  to  the 

IV.  ^heir  attendance  requijite  ivhen 
laden  ;  and  if  detriment,  nvhere 
to  be  refponfihle. 

V.  When  Accidents  befalthem^ivhsre 
they  ought  to  be  look'd  after,  and 
at  <whofe  cojis. 

VI.  The  Mariners  Oath  ivhere  re- 
quijite  to  the  difcharging  of  the 

VII.  What  Accidents  do  dejiroy,  and 
tvhat  noty  their  Wages. 

VIII.  Where  they  may  join  all  in  a 
Suit  for  the  recovery  of  their  Wa- 
ges, and  nxjhere  not. 

IX.  Of  their  Wages  njuhere  liable  to 
anfaver  damage. 

X.  Where  they  abfolutely  lofe  their 

XI.  Of  Money  or  Goods  taken  up  by 

a  Mariner,  'where  itfiall  bt  Mt, 
and  'vohere  a  Dif count  of  his  IVa- 

XII.  And  of  their  becoming  liciu  tt 

XIII.  Barratry  in  the  Mariners,  tht 
reafon  ix)hy  the  Lanv  imputu  ofn- 
ces  in  them  to  be  anfv:end  hj  h 

XIV.  In  nvhat  cafes  the  MaprpH 
become  liable  for  the  Adim  ^In: 
Mariners.  .  , 

XV.  Of  Goods  purloined  hefireth 
are  brought  on  Ship-board^  mc. 
the  Majier  is  bound  to  anfnuer,  ni 
owhere  not, 

XVI.  Of  the  Antiquity  offmh  &• 

XVII.  Of  Goods  brought  fccrin) 
in  on  Ship- board,  if  purlointi, 
ivhere  the  Majier  is  not  mdt  Hi- 

XVIII.  Of  Caution  or fore-nvarnim 

ivhere  the  fame  Jhall  excuft  m 
XrX.    Where  the  Majier  Jbd  » 
liable,  notwthjlanding  fuch  Co*' 

I.  THE 

Chap.  til.        M  ^av(mt0.  243 

I.  Tp  H  E  peiTons  ordinary  for  failing  in  Ships  have  di- 
JL    vers  denon:iinations  :  The  firfl,  which  is  the  Ma- 
fter,  known  to  us  and  by  moil  Nations  both  now  and  of 
old,  and  efpecially  by  the  Roman  Lav/s,  Ncivicularius  or 
Ma^ifter  Navis  ;  in  Engliflj  rendered  Maftcr  %    or  Exer-  Leg.  i.  ^ 
(iter  Navis  i  in  the  Teulomck  Skipper  ;  by  the  Grecians^  paffimadLegl 
flavcrchus  or  Nauclerus  ;    by  the  Italians^   Patrono,     But  ^'^^^'  ^  ^^^' 
this  is  only  to  thofe  VeiTels  that  are  Ships  of  Burden  and  i^aut!^Caup. 
of  Carriage  \  for  to  Ships  of  War  the  principal  there  is 
commonly  called  Commander  or  Captain.     The  next,  in 
order  of  Office  to  the  Mailer,  is  he  who  direds  the  Ship 
in  the  Courfe  of  her  Voyage,  by  the  Fr^^r^ 'called  Filote  % 
by  the  Englijh  and  Flemming^  Steerfman  ;   by  the  Romans,  ;r 

Quhernator  5  by  the  Italians^  Nochiero  Pilotio  and  Navar- 
cbus,  as  Gerettus  writes.  The  third  is  efteemed  the  Ma- 
iler's Mate  or  Companion,  chiefly  if  the  Mafter  be 
Steerfman  himfelf ;  of  old  by  the  G?'^dans  and  Romans 
calkd  Proreia 'y  his  charse  is  to  command  all  before  the  ^^/-  ^^g'^on- 
Maft.  °  _  >'• 

His  Succeflbr  in  order  is  the  Carpenter  or  Shipwright, 
by  thofe  two  Nations  of  old,  called  Naupegus  by  the  lat- 
ter ;  by  the  firft  Calapbafes.  From  the  Loins  of  one  of 
that  Rank  fprang  that  great  Emperor  Michael^  firnamed 
Calaphates^  who  denied  not  to  own  the  quality  of  his  Fa-  The  Father 
ther  among  his  Regal  Titles.  The  very  Name  of  Gala-  ^^•J'^fgYt 
/to  the  Venetian  and  Italian  dill  ufe  to  this  Day.  natius  Folate- 

The  next  who  fucceeds  in  order,  is  he  who  bears  the  ranus  ob- 
Charge  of  the  Ship's  Boat,  by  the  Italians  called  B^achie-  ^^^^^^^  Hb.z^. 
nV  i  by  the  Grecians  and  Romans,  GaraMta^  from  Cara- 
hs,  which  denotes  the  Boat  of  a  Ship. 

The  fixth  in  order,  efpecially  in  Ships  of  Burden,  is 
the  Clerk  or  Purfer^  by  the  Italians  called  Scrivano  :  whofe 
Duty  is  >  the  regiftring  and  keeping  the  Accounts  of  all 
received  in  or  delivered  out  of  the  Ship  ;  for  all  other 
poods  that  are  not  by  bitn  entred  or  taken  into  Charge^ 
if  they  happen  to  be  caft  over- board  in  a  Storm,  or  are 
ftoln  or  imbezzled,  the  Mafter  anfwers  them  not,  there 
Wng  no  Obligation  on  hina  by  Law  for  the  fame  s  his  lUConfokto 
%  is  to  unlade  by  Day,  not  Night.  ^''^'-  '4^'^''' 

J  i^  o  2.  cap.  ii» 

,-.  0^2  ^  Th0 

244  ^t  Spanner?!*         Book  ii; 

The  feventh  a  moft  ncceflary  Officer  as  long  as  there  ' 
are  aboard  Bellies,  Iharp  Stomachs  and  Provifion,  called 
the  Cook. 

The  eighth  is  the  Ship's  Boy,  who  keeps  her  continu- 
ally in  Harbours,  called  of  old  by  the  Gr^ecians^  Nauphi- 
lakes  ;  by  the  Italians ^  Giiardino  :  Thefe  Perfons  are  di- 
ftindl  in  Offices  and  Names,  and  are  likewife  diftinguifh- 
ed  in  their  Hires  and  Wages  •,  the  reft  of  the  Crew  ^re 
under  the  common  Name  of  Mariners,  by  the  Romans 
Budceus  ad      Called  Naiit^e  ;   but  the  TarpoUians^  or  thofe  Youths  or 
Leg.  I .  Naut.  Boys  that  are  Apprentices,  obliged   to  the  moft  fervile 
Caup.  tot.        Duties  in  the  Ship,  were  of  old  called  Mefonaiita. 

By  Stat.  1.  Ann.  ch.  6.  Two  Juftices  of  Peace,  or  the 
J,  Church- Wardens,    i^c.    with  Confent  of  fuch  Juftices, 

may  bind  out  any  Boy  of  ten  Years  of  Age,  who  is  or  his 
Parents  are  chargeable  to  the  Parifh,  or  who  begs  for 
Alms,  to  be  Apprentice  to  the  Sea-Service  to  any  Sub- 
jed,  Mafter  of  a  Ship,  belonging  to  any  Port  in  Englandj 
IVales^  or  Berwick.  See  the  At\.  how  the  Indenture  is  to 
be  made,  and  for  feveral  other  Particulars.  The  Church- 
Wardens  are  to  pay  50  s.  to  buy  neceflary  Clothing  and 
Bedding  :  Such  Apprentice  is  not  to  be  impreffed,  or 
permitted  to  inlift  himfelf  in  the  King's  Service  till  eigh- 
teen Years  of  Age.  But  Note,  that  by  Stat.  4.  and  5. 
jinn.  ch.  19.  Se^.  16.  Mafters  are  not  obliged  to  take 
fuch  Apprentices  under  the  Age  of  fifteen  Years ;  nor, 
unlefs  they  be  healthy  and  ftrong  of  Body.  The  Admi- 
ralty is  to  grant  Protedions  for  Apprentices  'fo  bound, 
till  eighteen  Years  of  Age,  without  Fee.  They  may  be 
affigned,  with  the  Afient  of  two  Juftices  -,  and  then  alfo 
to  have  Protedlions. 

II.  The  Mafter  hath  the  fupreme  Rule  on  Ihip- board, 

and  by  that  Means  his  Power  and  Authority  is  by  Law 

much  countenanced,  efpecially  in   the  keeping  his  Crew 

in  Peace  fo  long  as  they  eat  his  Bread  ;  and  if  a  Mariner 

fhall  happen  to  be  bruifedor  hurt  in  doing  his  Duty  and 

*  Per  Leg.      Service,  the  Mafter  *  is  to  take  Care  that  he  be  carefully 

OIeron,cap.6.  ]ook'd  after,  in  order  to  the  procuring  his  Recovery;      and  if  it  be  occafioned  by  the  Mifcarriage  of  another  on 

]''^'^''q%^   Ship-board,  he  may  refund  the  Damage  out  of  his, ^a- 

Calp!"    ^^^'  S^^>  ^^^  ^^^^  remembring  who  gave  the  firft  AlTauk. 


:hap.  hi.      M  W^vinm.  245 

If  it  happens  that  the  Mafter  commands  his  Boat  to 
3C  manned  out,  and  it  fo  happens  that  the  fame  is  out 
dF order,  or  unfit  to  take  the  Sea,  the  Tews,  or  other 
Accoutrements  being  impotent,  if  the  Mariners  happen 
robe  drowned,  the  Mailer  is  to  repay  by  theLawiVf(^n;^^ 
jie  whole  Year's  Hire  to  the  Heirs  of  the  drowned  : 
Therefore  Mailers  ought  carefully  to  view  and  fee  that 
^  the  Boat  be  fit  for  Men  to  trufl  their  Lives  in,  upon  his 
,  Command. 

If  a  Mariner  fhall  commit  a  Fault,  and  the  Mailer  fhall 
'  lift  up  the  Towel  three  before  any  Mariner^  and  he 
^  (hall  not  fubmit,  the  Mailer  at  the  next  Place  of  Land 
,  may  difcharge  him  ;  and  if  he  refufeth  to  go  afhore,  he 
i  ihali  lofe  half  his  Wages,  and  all  his  Goods  within  the 
\  Sfrip.    Vi  the  Mariner  fhall  fubmit,  and  the  Mailer  will  Per  Leg.  Ok- 
\  not  receive  the  fame,  he  fhall  have  his  whole  Wages ;  or  ron^  cap.  14. 
i^'^t  Mariner  fhall  depart  the  Ship  on  the  Mailer's  Com- 
mitrd,  and  the  Mafler  happens  not  to  take  another,  if 
any  Damage  happens  to  Ship  or  Goods,  the  Mailer  mull 

III.  Mariners  mufl  help  one  another  at  the  Sea  and  in  p^^  i^g^  qu^ 
Port ;  if  any  refufe,  upon  the  Oaths  of  his  Fellows,  he  ran,  cap.  13, 
lofeth  his  Wages.     None  of  the  Crew  mull  or  ought  to  ^  P^^  ^^i- 
leave  the  Ship,  without  Leave  of  the  Mailer,  when  Ihe  ^^«^'^'"^* 
comes  to  a  Port,  or  rides  at  Anchor,  but  always  con-     ' 
ftandy  to  wait  upon  her  till  they  are  difcharged,    or  have 
leave,  at  leafl;  half  to  be  left  on  Ship-board. 

''k' Mariner  may  not  carry  out  of  the  Ship  above  one  i^g,  nemo  de 
Meal's  Meat,  but  Drink  not  a  drop  *,  and  when  on  Ship-  Reg.jur.  & 
board,  ouglit  not  to  be  there  arrefled  for  Debt,  but  on-  L^g- plerumq^ 
ly  fo  much  of  his  Wages  in  the  Hands  of  the  Mailer  at-  '^''"^'''  '^''^ 
tached  :  Yet  this   is  doubted,  if  it  be  not  on  a  fworn 
Debt,  that  is,  a  Judgment  or  Sentence,  or  a  Penalty  to 
the  King. 

They  ought  not  to  depart  from  on  Ship-board  when 
once  admitted  into  their  full  Pay  (vv'hich  is  always  when 
they  break  Ground)  without  Licence  of  the  Mailer  ;  and 
before  they  may  fo  do,  they  are  to  leave  a  fufHcient 
number  to  guard  the  Ship  and  Decks. 

See  the  feveral  Ads  of  the  jt\\  and  8th  William  IIL 
Cap,  21,  Intituled  an  A61  for  the  Increafe  and  Encou- 
ragement of  Seamen  J  and  of  the  8th  and  9th  of  the  fame 

0.3  King^ 

246  ©f  ^mWU^.  Book  II. 

King,  Cap.  23.  Intituled  an  A(5l  for  the  further  Increafe 
and  Encouragement  of  Seamen,    for  regiftring  of  Sea- 
men, and   providing  for  their  Widows  and  Children  in  I 
fuch  manner  as  therein  is  mentioned,    too  large  to  be 
recited  here. 

By  Stat.  9.  Jm.  ch.  21.  the  Regiftring  of  Seamen  is 

IV.  If  the  Ship  breaks  Ground,  and  is  fet  fail,  if  after 
fhe  arrives  at  her  defired  Port,  their  full  Pay  continues 
till  fhe  returns  -,  nor  may  they  in  any  wife  depart  from 
on  Ship-board  without  Leave  or  Licence  of  the  Mafter; 
if  they  do,  and  any  Difafter  happens,  they  muftanfwer: 

leg,  Olenn,     Yet  at  fuch  Port  if  the  Veffel  be  well   moored  and  an- 
f^/-  S-  chored  with  two  Cables,   they   may  go  v/ithout  leave, 

yet  fo  as  they  leave  a  fufficient  number  behind  to  guard 
the  Decks  :  But  then  their  return  mufb  be  in  due 
Seafon  ;  for  if  they  make  longer  flay,  they  mud  make 

V.  If  Mariners  get  drunk  and  wound  one  another,  they 
are  not  to  be  cured  at  the  Charge  of  the  Mafter  or  Ship  •, 
for  fuch  Accidents  are  not  done  in  the  Service  of  the 
Ship  :  But  if  any  of  the  Mariners  be  any  ways  wounded, 
or  do  becom.e  ill  in  the  Service  of  the  Ship,  he  is  to  be 
provided  for  at  the  Charges  of  the  Ship  ;  and  if  he  be 

leg.  Oliran,]    fo  iH  as  not  fit  to  travel,    he  is  to  be  left  afhore,  and 
^^P'  *•  Care  to  be  taken  that  he  hath  all  Accommodations  of  Hu- 

manity adminiftred  to  him  :  And  if  the  Ship  is  ready  for 
a  Departure,  fhe  is  not  to  ftay  for  him  •,  if  he  recover, 
he  is  to  have  his  full  Wages,  deducing  the  Mailer's 
Charges  which  he  laid  out  for  him. 
Leg.  Okrouy  VI.  In  Cafe  of  Storm,  if  Goods  are  caft  over-board  for 
f^'f  ^*'  lightning  the  Ship,  the  Oaths  of  the  M/^m^rJ,  fwearing 

that  it  was  done  for  the  Prefervation  of  the  VefTel  and 
the  reft  of  the  Lading,  fliall  difcharge  the  Mafter. 

So  Goods  damnified ^at  Sea,  are  cleared  by  the  Oath 
of  the  Mafter  and  Mariners^  by  the  Laws  oWleron. 
leg.  Olerott.         To  aflault  the  Mafter  on  Ship-board,  is  a  Crime  that 
^^P'  13-        ,fubje6ls  the  Mariner's  Hand  to  be  cut  off,  unlefs  he  re- 
deems it  at  5  Solz, 

VII.  If  a  Ship  happens  to  be  feized  on  for  Debt,  or 
otherwife  to  become  forfeited,   the  Mariners  muft  receive 

,  Confoiat,  dd.    their  Wages,  unlefs  in  fome  Cafes  where  their  Wages  are 
mtrs.  forfeited 

ighap.  III.     ^i  ^atitxm.  ,  247 

:  f^jrfeited  as  well  as  the  Ship  ;  or  if  they  have  Letters  of 
Jerque,  and  inltead  of  that  they  commit  Piracy,  by  rea- 
fon  of  which  there  becomes  a  forfeiture  of  all  :  but  Lading  Rolls' s  A- 
of  prohibited  Goods  aboard  a  Ship,  as  Wool,  and  the  bridg. /a/, 
like,  though  it  fubjecls  the  Veflel  to  a  Forfeiture,  yet  it  530' 
difahlcs  not  the  Mariner  of  his  Wages  ;  for  the  Mariners 
having  honeilly  perform'd  their  Parts,  the  Ship  is  tacitly 
blitzed  for  their  Wages  :  But  if  the  Ship  periflies  at  Sea, 


they  lofe  their  Wages,  and  the  Owners  their  Freight. 
And  this  being  the  Marine  Cuftom,  is  allowed  by  the 
Common  Law  as  well  as  the  Civil  Law. 

If  ihe  comes  to  her  firil  delivering  Port  they  have 
Wages  till  then  :  If  loft  afterwards,  they  only  lofe  thofe 
fubfequent  Wages.  L,  Raym.  639.  ^  this,  and  fee 
h^Rapn.  739.  where  they  loft  part  of  their  firft  Wages. 

VIII.  The  Courts  ^tlVeftmivfter  have  been  very  favour- 
able to  Mariners  in  order  to  the  fuing  for  Wages,  for  at 
the  Common  Law  they  cannot  join,  but  muft  fue  all  di- 
ftinft  and  apart  for  their  Wages. 

Yet  in  the  Admiralty  they  may  all  join,  and  the  Courts  i  ^ent.  146. 
ztWeftminfier  will   not  grant  a  Prohibition:  And  fo  it  343- 2  ^^-?«^. 
was  ruPd  where  one  Jones  f  a  Matter  of  a  Ship  was  fen-  ^  ^^^^/^  „ 
tenced  in  the  Admiralty  for  Wages  at  the  Suit  of  poor  -j^  m^uh. 
Mariners,  a  Prohibition  being  prayed  upon  a  Suggeftion  Rep.  8. 
ihat  the  Contra6l  was  made  at  Land,  and  not  fuper  ahum 
mm\  the  Court   denied  it,  for  that   he  came  too  late. 
Sentence  being  given  below   againft   him  :    Yet  if  the 
Mariners  had  only  libelled,  and  there  had  been  no  Sen- 
tence, and  the  Defendant  had  prayed  a  Prohibition,  as 
above,  the  Court  would  have  denied   it.       This    hath 
been,  and  is  ufually  done. 

It  was  by  meer  Indulgence  that  Mariners  were  per- 
mitted to  fue  in  the  Admiralty  for  their  Wages  :    And  Saik/ii.  ^It, 
this  Indulgence  was,  becaufe  the  Remedy  in  the  Ad  mi-  4- 
ralty  was  the  eafier  and   better  •,    eafier,    becaufe    they 
muft  fever  here,    whereas    they    may  join  there  *,    and 
better,  becaufe  the  Ship  itfelf  is  anfwerable  :   but   it  is   ' 
exprefsly  againft  the  Statute,  tho'  now  Communis  Error 
facit  Jus.     The  firft  inftance  of  it  is  in  Winch,  8.     Yet  it 
was  never  allowed  the  Mafter  iliould  fue  there  •,  nor  is 
itreafonable  where  he  commenceth  the  Voyage  as  Ma^ 
fcr ;  for  tho'  the  Mariners  contrad  upon  the  Credit  of. 


the  Ship,  the  Mafter  doth  contradl  on  the  Credit  of  die 
Owners.     L.  Raym.  397,  ad  idem. 
Sdik.^^,      But  yet  the  Mate  may  fue  in  the  Admiralty  for  his 
Wages,  becaufe  he  Contradls  with  the  Mafter,  as  the  reft 
of  the  Mariners  do.     L,  Raym.  632,  ad  idem. 

Bat  the  Court  will  be  very  well  informed,  that  the  Libel 

is  for  Mariners  Wages ;  for  fon;e  who  work  Carpenters 

Sit^dl^  al,  work,  and  fuch  like  Labour,  aboard  a  Ship  in  a  Havenlor 

Owners  of  a    ^Q^t  within  tlie  Realm,   which  is  infra  Corpus  Comitatusy 

love^al      (notwithftanding  thofe   great    and   ingenious  Objedions 

Mich,  z-j Car.  againft  it)  and  muft  be  tried  by  the  Common  Lazv,  and 

in  B.  R.         pot  elfewhere,    will  libel  under  that  Cloak  for  Marintrs 

Wages.     But  the  Court  in  that  cafe  will  grant  a  Prohi* 

bition.     And  fo  it  was  done  in  the  like  Cafes. 

But  if  a  Ship  rides  at  Anchor  in  the  Sea,  and  the  Mafter 
fends  his  Boat  afhore  for  Viduals  or  other  Provifions'for 
the  Ship,  and  accordingly  the  Prcvidore  or  Slop-felkr  . 
Latch,  fol  II.  does  bring  Viduals  and  Frovifions  aboard  •,  in  that  Cafe 
if  the  Con  trad  be  made  there,  it  muft  be  fued  for, in 
the  Admiralty :  But  if  the  Goods  are  by  the  Purfer  or 
Mariner s  Q.QiXi\.xz.6itdi  for  at  Land,  they  muft  fue  at  Comnitrr, 

But  a  Suit  in  the  Admiralty  for  Seamens  Wages  grown 
due  in  the  River,  though  no  Voyage  made,  was  not  pro- 
hibited.    L.  Raym.  1044^^ 

Nor  tho'  made  by  Writing  at  Land  •,  or  even  by 
Deed.     (^  of  this  laft  Point.)     L,.  Raym.  1206.     ... 

The  Mafter    cannot  fue   in    the   Admiralty  forbiis 

Wages.     L.  Raym.  576.  t.t/ 

ThisDoflrlne      IX.  If  Goods  are  fo  imbezzled,  or  fo  damnified  that  the 

cited.    L.       Ship's  Crew  muft  anfwer,    the  Owners  and  Mafter  muft 

Rajm.6^0.     dedu6t  the  fame  out  of  their  Freight  to  the  Merchants, 

and  the  Mafter  out  of  the  Wages  of  the  Mariners  -,  for 

though  Freight  is  the  Mother  of  Wages,  fo  is  it  the  very 

Father  of  Damage  •,  For  before  the  Mariner  can  claim  his 

Wages  out  of  what  the  Ship  hath  earn'd,   the  Ship  muft 

be  acquitted  from  the  Damage  that  the  Merchant  bath 

fuftained  by  the  Negligence  or  Fault  of  the  Mariners  .vAnd 

the  reafon  is,  for  that  as  the  Goods  are  obliged  to  anfwer 

the  Freight,  fo  the  Freight  and  Ship  is  tacitly  obliged  to 

leg.  oieyon.     clear  the  Damage  •,  which  being  done,  the  Mariners  are 

th^n  \tt  in  to  their  Wages. 

"^  x.if 

^iAP.  IH-         ®f  ^avimm  249 

X.  If  a  Mariner  be  hired,  and  he  deferts  the  Service 

fore  the  Voyage  ended,  by  the  Lazv  Marine  he  lofes 
his  Wages:  And  the  fame  Cuftom  at  Common  Law  plead- 

'•   it  hath  been  conceived  will  bar  him. 

\{z.  Mariner  fliall  commit  any  wilful  or  negligent  Fault, 
byreafon  of  which  the  Mafter,  Owners,  or  the  Ship  anfwers 
D.^mage  to  the  Merchant,  an  Action  lies  well  againft  him. 

In  a  Suit  for  Mariners  Wages  'twas  agreed.  That  if  i  Sid.  236. 
the  Ship  do  not  return,  but  periflies  by  Temped,  Ene- 
my, Fire,  &c.  the  Mariners  fhall  lofe  their  Wages  •,  for 
if;  the  Mariners  fhall  have  their  Wages  in  thefe  Cafes, 
they  will  not  ufe  their  bcfl  Endeavours,  nor  hazard  their 
Lives  to  preferve  the  Ship,  i  Sid,  179.  But  if  the  Ship 
unlade,  they  fhall  have  their  Wages  ;  in  the  Cafe  of  Culkn 
ind  Mico,   i  Keehle  831. 

If  a  Seaman  be  prefTed,    he  Ihall  have  his  Wages  pro 
rata.    L.  Raym.   12 11. 

XL  If  a  Mariner  takes  up  Monies  or  Cloaths,  and  the 
fame  is  entered  in  the  Purfer's  Book,  by  the  Cuftom  Ma-  * 

rine  it  is  a  Difcount  or  a  Receipt  of  fo  much  of  their 
Wages  as  the  fame  amounts  to ;  and  in  an  A6lion 
brought  by  therq  for  their  Wages,  the  fame  fliall  be 
allowed,  and  is  not  accounted  mutual,  the  one  to  bring 
his  Adipnfor  the  Cloaths,  and  the  other  for  his  Wages. 

XII.  A  Mader  of  a  Ship  may  give  moderate  and  due  Pafch.  lyCar, 
Correction  to  his  Mariners^  and  if  they  bring  an  A<n:ion  inB.R.Pidge- 
againft  him,  he  may  juftify  the  fame  at  the  Common  Law ;  °^  adfea.Ar. 
and  by  the  Law  of  Oleron^  if  a  Mariner  fhall  affault  the  ^^^all.    Leg 
Mafter,  he  is  to  pay  5  Solz,  or  lofe  his  Hand.  0/eron.  c,  13, 

^rf]  Mariners  after  they  have  unladen  the  Ship,  if  they  de- 
Amand  their  Wages,  and  there  be  any  Intention  of  their 
.Departure,  the  Mafler  may  detain  a  reafonable  Propor-  Per  Leg.  O/r- 
'iiion  of  the  fame  till  they  bring  back  the  Ship,  or  give  ^^^'  ^^P-  ^^• 
Caution  to  ferve  out  the  whole  Voyage. 

XIII.  Barretry  of  the  Mariners  is  a  Difeafe  fo  Epide- 
mical on  Ship-board,  that  it  is  very  rare  for  a  Mafler  be 
his  Induftry  never  fo  great,  to  prevent  it ;  a  Span  of  Vil- 
lany  on  Ship-board  foon  fpreads  out  to  a  Cloud,  for  no 
other  Caufe  but  of  that  circular  Encouragement  that  one 

''feavifti  Mariner  gives  another. 

However  the  Law  does  in  fuch  Cafes  impute  Offences  7"-^-  ^^.f^' 
and  jp(.7«//j  committed  by  them  to  be  Negligences  in  thc-^^^f^^^ 

Mafler  •,  '     * 

250  SDt  ^avimm      '    Booki. 

Mader ;  and  were  it  otherwife,    the  Merchant  would  b* 
in  a  very  dangerous  Condition. 
Tafch.w .Jac,      The  Reafons  why  they  ought  to  be  Refponfible,  are,  for 
in  B.  R.Herti  j-^at  the  Mariners  are  of  his  own  chufjng,  and  under  his 
Rolfs'ASg.  Correcflion  and  Government,    and  know  no  other  Supe^ 
^23.      "      riour  on  Ship-board  but  himfelf ;  and  if  they  are  Fault^j 
he  may  correct  and  punifh  them,    and  juftify  the  fameJ 
by  Law:    And  likewife  if  the  Fa6t  is  apparently  prov- 
ed againfl  them,    may  reimburfe   him^felf  out  of  their 
Naut.  Caup.        XIV.  And  therefore  in  all  Cafes,  wherefoever  the  M<r- 
f  ""r  e'^H     ^^"^^"^  ^^^^^  aboard  any  Goods  or  Merchand'ize,  if  they  be 
\Ven.  190,    ^^^y  Imbezzled,  or  any  other  ways  Damnified,  heinuftbe 
238.         '    Refponfible  for  them  ;    for  the  very  lading  them  aboard 
Rajm.  220.     makes  them  liable,  and  that  as  well  by  the  Common  Law  z& 
'  ut'e'"'     ^^^  ^"^^  Marine. 

^Glc/rrupereod      ^^^ '  ^^^^ "^  ^^  ^^'^  Mariners  go  with  the  Ship-Boat  to  the 
vW.  aTJ/^  ^^y  ^^  Wharf  to  fetch  Goods  on  Ship-board,  if  once  they 
fa.ium.  have  taken  Charge  of  them,  the  Mailer  becomes  immedi- 

ately Refponfible,    if  they  Steal,  Lofe,  Damnify  or  Im- 
bezzle  them.  ' 

XVI.  The  antienteft  Record  that  is  found  extant,- "is^ 
that  in  Edvjard  the  Third's  time,  whei-e  one  brought  an 
Aclion  of  Trefpafs  againft  the  Mafter  for  the  Imbezle- 
ment  by  his  Mariners  of  twenty  two  Pieces  of  Gold,  Bow, 
Sheaf  of  Arrows,  Sword,  and  other  things-,  and  adjudg- 
ed he  Ihould  anfwer.  And  for  that  the  fame  is  or  raayi 
be  of  great  Moment,  accept  of  a  Tranfcipt  of  the  Re- 
cord, as  the  fame  was  certified  into  Chancery^  in  orde! 
to  have  it  fent  into  the  King^s  Bench,  to  enable  the  Plain- 
tiff to  bring  an  Aclion  upon  the  fame  judgment  in  anf 
Place  in-  England^  where  he  could  meet  with  the  Dw^fcn* 

Srsv:a  Regis    X  J  (Z\\ZtM\\  I'tt  CfjJlCO  ^3^1  ^01111110  3!-  D^l  ffW^ 

i.  Turre  Lon^  y  j j^  ildlpsom'  ^Cpifcopo  Donuui  mm  ^^^ 
rjTnZ'  GancellattD  U\  zm  locum  tenenti  fut  fiuniiic^  ^  ^r- 
IrifioL  iotr,  Eobmug  (gpene,  ^aiac  (XiWz  15?iaoI,  w^- 
toacDug  Qplanfeeit,  gt  SjoDannes  tie  €afi|e  acre  'iJ^ 
iiDi  iihcctatum  eiufaem  aiile,  falutcm  mm  mx\i 
re&ecentia  $  \)mniz.  £)e  ttmit  $  Recrsim'  $  W: 
cefiiiiS  loquele  que  fuit  cojam  nouig  iii  Cuc'Dominj 

Chap.  HI.  ®f  ^S^VUXttS*  251 

aefft0  ibium  fine  hmi  inter  ^zn.  ipilfe  $  SiutJa-- 

I  numffleno?^  spagianim  JBaWs  feocat  la  aJracianc 

i:  Be  TBapone  in  pi'ito  tcanfgrefS'  p?out  per  b?e&e  ©a-- 

fe  m(m  WiW0  nobis  Directum  tutt  Dobig  inoe  certifica= 

y  tiir,  rub  fifftlUg  noftris  l3ob!0  fi  placet  mittimtig  in 

ri  11(10  fcriptw*  ^'0  placit'  Tolls  tent'  ibioem  aie  S^ar-- 

» tijs^  vm'  poilf  eaum  Epiphanis  Doniini  anno  Eeo:* 

^  ni  EeffiS  nunc  ^4  fpen*    f  iffe  qiter'  opt'  ft  SerfujS 

i  jawanum  caeno?e  ^agiRram  il2a5}i0  \50cat'  la  ©ra- 

ciaite  t)z  Bapone  ae  prita  tranfgrefs'  per'  pr  $c.  s: 

I  iiime  quer'^  quoa  fecunoum  legem  $  confuetuUinem 

Be  0  L  E  R  o  N  unufquifqi  ® agiRer  JOa^ig  tenetur 

refponUEre  De  qiiacunque  tranfgrefg'  per  feriiteates 

im  in  eaaem  fact',  $  Soljannes  Be  Eule  $  ^arcolet 

Be  15omt&  feruienteg  p^esicti  SurBani  a^agifirt  iQa* 

m  pjeaicte  Bie  ^ercur*  p?or'  ante  ifeOum  onmtimi 

©aiictojum  anno  Eegni  p?eBictt  Eegis  cea.  ^3,  m 

^ari  furta  iiBritan.  in  eaaem  nasi  Qe  3lo&anne  ae 

€mw\f  ferDlenr  preafct'  ^^  Ubf  in  auro,  arcug, 

fagit',  glaa.  $  ar  bona  $  catalla  aa  salenc'*  4°  u 

ccpenint  $  arpojtaserunt  iniufte,  $f*  aa  aampnum    ^ 

mw  |)em  6^*r  $  fi  preaicttis  Juraanus  fjcc  aelit 

mmzy  p?eaict  |)en*  paratus  efi  aerificare,  $c*  ct 

p?cnfrtus  auraamis  uenit  ^  aicit  quoa  ler  ae  ojeron 

talis  tft  quoa  fi  niiqua  bona  ?:  catalla  ^agtftro  alt= 

nijiiis  J!2ai)f0  libcrata  funt  cuff oaiena',  unae  laem 

fagifter  p?o  eifaem  ^el  p?o  aiiqua  alta  re  in  eaaem 

nail  facta  manucap',  tllo  moao  ^agiffer  Bms  w 

Mm  refponaere ;  non  alio  moao,  $  fup'  Ijoc  petit 

JttBiciam*   €t  p^eaict  l)zn.  aicit,  quoa  umsfquifquc 

tagifter  tmzmt  refponaere  ae  quacunque  tranfgref- 

fione  per  ferDientes  fuos  in  ii5ai3i  fua  facts  $  petit  Ju.       ^ 

aicium  fimiUter.  €t  fup'  feoc  p?eaict'  partes  Ijabent 

Hiem  Uc  ate  ^abbati  p?or  pod  jf effum  fci.  iMmi 

Kof  futur'  aa  auaientf  auaicium  fuum,  ?c*    aa 

quern  Biem  pjeBicte  partes  ienerunt  $  petierunt  Jxu 

Biniim  fuum,  fc*   €t  recitat  EecojBo  $  p^oceffu 

ppictis  in  plena  Curia  cojam  t^aiore  $  neraiiibis  $ 

aiiis  p?ob!S  Ijominifaus  ^iilt  $  ^agiaris  $  carina-- 

tils,  Bifuni  fait  Curtee,  quoa  unufqutfq^  ^agiflfer 

I5ai3is  tenetur  refponaere  Be  quacunque  tranP 

Bceiftone  per  feraientes  fuos  in  Ba^i  fua  facta,  jaea 


25a  SDf  ^atittttS.  Book  II, 

The  ludg-  caiiCDetattmi  cff,  quoti  preuict'  ©en,  recuperet  Janiu^ 
ment  in  this  ^^  f(|g  40 1.  jjetfusi  preDtct'  3f«rlianiim  per  Cur.  tntar 
^'?;il?n"    9  nifttlDniiniis  fDeni  3iu«iauuis  tranrBreCione  mwu 

ought  not  to 

have  been  a  capiatur ;  for  it  is  not  fuch  a  Trefpafs  as  the  King  is  entitled  to  a  Fine 

Vide  Cro.  jf^c,  224.  Beed/e  *verfus  Moris.     Coki&  Entries,  /o/.  347. 

XVIL  The  Mafter  fubjed*  to  anfwer  Damage,  is  to  be 
underftood  in  all  fuch  Cafes  where  the  Lading  was  brought 
aboard  either  by  his  Confent  or  his  Purfer's  ;  for  any  0-' 
Leg  I .  zn/n.   ther,  or  fuch  a6  fhall  be  fecretly  brought  in,  not  being 
Naut.  Caup.    entered  in  the  Purfer's  Book,  or  in  the  Bills  of  Lading,' 
^defurt'iiy'''  the  Mafter  is  not  obliged  to  fee  forth-coming,  unlefs'ic 
be  fuch  Goods  as  the  Parties  bring  into  the  Ship  about 
them,    as  Clothes,    Money,    and  the   like,    as   above, 
thofe  things  being  feldom  entered,  yet  mod  commonly 
thofe  that  are  vifible,  the  Mafter  by  Law  is  Refponfiblef 
Eod.  Leg.  in        XVIII.  So  likewlfe  if  a  Mafter  forewarn  a  Paflenger  to 
Jin.  Naut.        keep  his  Goods,   and  that  he  will  no  weys  take  Care  of 
^''^ita^utde  them,  and  if  they  be  loft  or  purloyn'd  by  the  Crew^^'He 
eod.  edia.        will  not  be  obliged  to  fee  them  forth-coming;  the  Mafter 
Bart.  ^Jafon  is  not  there  held  Refponfible  in  Cafe  of  a  Lofs^  efpecially 
in  kg.  nonfo-   jf  x\[i^i^^  ^c  any  thing  of  Agreement  thereunto. 
^^^nortem  de        XIX.  But  if  Goods  ftiall  be  fent  aboard  a  Ship,  and 
mn  oper,         the  Mafter  fliall  appoint  a  Cabbin  for  the  fame,  and  deliver 
the  Key  to  the  Lader,   and  tell  him  he  will  not  be  Re- 
fponfible if  a  Lofs  happens ;  yet  if  the  Goods  are  flole, 
he  muft  notwithftanding  make  Satisfa6tion  :  By  the  Com- 
mon haw  it  Ihall  bind  an  Inn-keeper.     Mo.  78. 
8  Coh  ^^.  a.      But  if  the  Inn-keeper  defires  his  Gueft  to  put  hisGoods 
^"n^^o'        in  fuch  a  Chamber  under  Lock  and  Key,  &c.  and  then 
he  will  warrant,  otherwife  not,  and  the  Gueft  leaves  them 
in  an  outer  Court,    where  they  are  ftole,    (f^c,  the  Inn- 
keeper ftiall  not  be  charged. 

Nofe^  That  Goods  once  delivered  to  a  Mafter,   the 

Cargo  is  not  fubjed  to  be  attached  in  his  Hands,  nor  can 

any  Cuftom  whatfoever  fupport  the  fame;    for  they  are 

in  Law  as  it  were  bailed  to  the  Ship,  until  the  Freight 

Tpt  U^r  ^"^  ^^^  ^^^^^  Charges  are  paid  :   And  very  much  doubted 

Chief  jullice    whether  an  Attachment  can  be  made  in  London  of  any 

Hale.  Goods 

Goods  at  all  lying  on  Ship-board  in  the  River  of  "Thames, 
(wbich,  though  the  Port  of  London)  notwithftanding 
Freight  and  all  other  Charges  are  paid  off. 

Commiflioners  of  Bankrupt  ifTued  a  Warrant  to  feize  HiH.  8  Anna 
Goods  of  the  Bankrupt  on  board  two  Ships  in  Topjham  Bay  ^'«  Chancery, 
in  Devon/hire ;  the  Goods  were  confign'd  to  Perfons  in 
Holland  who  had  not  paid  the  Bankrupt  for  them  :  The 
Mafters  refufed  to  deliver  the  Goods,  notwiihftanding  the 
Warrant ;  which  occafioned  the  CommifTioners  coming  to 
'  demand  theGoods,    which  ft  ill  were  refufed. 

Sir  Peter  King  moved  for  an  Order  upon  the  Mafters 
ft  their  Contempt. 

The  Court  at  firft  greatly  doubted  whether  they  can 
make  an  Order  in  Aid  and  Afllftance  of  the  Warrant 
of  the  CommifTioners  of  Bankrupt,  the  Statute  having 
veiled  a  large  Power  in  them  ;  befides  the  Perfons  to 
whom  the  Goods  are  configned,  would  be  indebted  to 
the  Creditors  of  the  Bankrupt,  which  Creditors  may  re- 
cover by  the  Law  of  Holland, 

Sir  Peter  King,  We  fliall  rather  lofe  the  Goods,  than 
follow  them  into  Holland. 

Lord  Chancellor.  Their  refufing  to  deliver  the  Goods 
upon  the  Warrant,  is  no  Contempt  to  this  Court,  tho* 
the  CommifTioners  a6l  under  a  CommilTion  under  the 
Broad  Seal.  I  remember  the  Queen  was  applied  to,  to 
lay  an  Embargo  upon  a  Ship  in  the  like  Cafe,  but  de- 
nyed;  becaufe  an  Embargo  would  have  affe6led  other 
Goods  in  the  Ship :  The  Mafters  in  this  prefent  Cafe 
have  fome  Colour  to  detain  the  Goods  ;  for  upon  a  De- 
hvery  of  them,  they  may  be  difappointed  of  Freight, 
and  the  AfTignees  of  the  Commifiion  muft  ftand  in  the 
fame  Place  as  the  Bankrupt,  and  be  fubjed  to  his  Con- 

But  however,  an  Order  was  made  upon  the  Mafters 
to  deliver  the  Goods  upon  payment  of  the  Freight 
Money,  and  the  Mafters  to  be  indemnified  by  the  Cre- 
ditors, againft  a  Bill  of  Lading,  which  v/as  fent  to  the 



£>f  ^Xti0)t  anD  Ci^atttV-'pHttk^.  Book  II, 

CHAP.    IV. 




I.  7^^  <var:ous  nvays  that  Ships  may 
be  freighted  at  this  Day. 

II.  The  antient  <vj ay  of  Freighting. 

III.  HoHJO  the  fame  is  go'vemed  upon 
the  ^various  Contra^Sy  and  of  Ac- 
cidents happening  to  Mafiers 
Laders  presenting  the  Voyage. 

IV.  Of  Agreements   parol  and 
Writing,    honv    conjirued   by   the 
Common  Lanv  ;  tuhat  it  is. 

y.  Of  Ships  laded  and  unladed  he- 
fore  the  Voyage  begun  j  their  he- 
coming  difabled,  viz.  perifh  in  the 
Voyage  before  the  fame  is  com- 

"VI.  Of  Ships  departure  confidered  in 
reference  to  Freight  and  Damage. 

yn.  Of  Freight  arifing  on  Trading 
Voyages,  and  loji  by  contingent 
Actions,  confidered  by  the  Common 
La^Wy  and  the  Laiv  Marine. 

y  III.  Of  Freight  becoming  due  upon 
the  ^various  ivays  of  Contra^,  or 
general  (where  none  ^was  agreed 

IX.  Of  Faults    arifing   from   the 
Freighters  ;  and  of  the  Deceafe  of 
the  Ship  in  reference  to  Freight. 

X.  Faults  of  Mafiers  arifing  from 

taking  in  Goods  more  than  lotri 
.    contracted  for  ;  and  of  being  for. 
ced  into  Ports  in  his  Paffage, 

XI.  Paffengers  dying,  the  Ship's  Tuii 
to  their  Goods  and  Concerns, 

XII.  The  Ship  in  conJiruSiion  ofLceo) 
honvfar  liable  to  Freight. 

XIII .  Ships  taken  and  retaken  in 
War,  ^whether  the  fame  defirgji 
the  Contra^. 

XIV.  Goods  become  loji  mthaut 
Fault  of  the  Ship,  nvhethtr  Freiibt 
becomes  due. 

XV.  Of  Freight  contraSledvjithTtr- 
fons  deficient. 

XVI.  Of  Ships  cont  railed  for  bjtht 
Month,  to  be  paid  at  the  Arrivtl 
at  a  Port ;  Ship  is  caft  aivay,  the 
Goods  fa<ved :  Whether  the  Frd^f^t 
ought  to  be  paid. 

XVII.  Co'venant  mutual  in  a  Char- 
ier-Party ^  fhall  not  bepleadiitk 
one  againfi  the  other.  Plea  that 
anj'hvers  to  Part  only  is  ill.  Crvi- 
nant  therein  byfe've7-al,yei  bni^hl 
againfi  one  only.  Co'venant  hjft' 
'zjeral  &  que^ilibet  eorum,  nw^ 
he  brought  againfi  one  only* 

1.  T  N  the  Freightng  of  Ships,   refpedl  is  always  had 
X  to  the  Ship  itSlf,    or  elfe  to  a  certain  Part  there- 

Again,  the  Merchants  either  Freight  her  by  the  Monih, 
or  the  entire  Voyage,  or  by  the  l^m  \  for  it  is  one  thing 
to  Freight  a  Ship,  and  another  thing  to  take  certain  2l/»- 
nage  to  Freight. 


Soalfo  it  is  one  thing  to  be  a  Cape- Merchant,  another 
to  be  an  under  Freighter. 

II.  There  was  of  old  another  way  of  Freighting,  v/hich  21  ^.  5.  Cou 
jfizs  when  the  Merchant  agreed  with  the  Mafler  for  a  Sum  '^'''^  Abridg- 
certain  to  convey  his  Goods  enfured  againft  all  Peril  -,  Pa^rHamen^^ 
fuch  were  to  be  refponfible  if  any  Detriment  or  Lofs  hap-  Records,  fol. 
pened  *,  but  that  is  now  become  obfolete.  63. 

^III.  Freigbi  is  governed  generally  by  the  Contracl,  and  Naut.  caup. 
ifies  according  to  the    Agreement,    reduced  generally  Stab.  i^c.  Leg, 
;to  a  Writing  commonly  called  a  C/^^r/^r-p^r/y,  execur  '•  §-f^^^'^-«- 
*  ted  between  the  Owners  and  Merchant,  or  the  Mafler  in  ^^uirZ^em  ^ 
j  the  behalf  of  himfelf  and  Ov/ners,    or  himfelf  and   the  conduxerit,  in- 
Merchant,  or  between  them  all ;  or  elfe  is  Parol.  Jlmmenta  con- 

The  Mailer  or  Owners  generally  covenant  to  provide  Jk^-^^^M^o- 
a  Vikt  and  all  other  Officers  and  Mariners,  and  all  other  ^^  '1/  ^Rhod 
things  necefTary  for  the  Voyage  \    and  for  the  taking  in  Art,  20. 
and.delivering  out  of  the  Lading. 

If  there  be  an  Agreement  and  Earneft,  but  no  Writing,  P^^  Leg.  Ka- 
if  the  fame  be  broke  off  by  the  Merchant,  he  lofeth  his  '^J^'  ^^°'^' 
Earnejl  \  but  if  the  Owners  or  Mafler  repent,   they  lofe     ''  *    ^* 
double  the  Earneft, 

But  by  the  Common  Law  o^  England.,  the  Party  damni-  Cro.Car.i^^J 
fied  may  bring  his  Adion  of  the  Cafe,  and  recover  all  Da- 
mages on  the  Agreement. 

If  a  time  be  appointed  by  the  Charter-party^  and  either  ^^^  ^f;  ^'^^'^ 
the  Ship  is  not  ready  to  take  in,    or  the  Merchant  not  ^'^  ^^'^  ^^^' 
ready  to  lade  aboard,  the  Parties  are  at  Liberty,  and  the 
Party  Damnified  hath  his  Remedy  againit  the  other  by 
Adion,  to  recompence  the  Detriment. 

If  Part  of  the  Lading  be  on  Ship-board,  and  it  happens 
I  fome  Misfortune  may  overtake  the  Merchant  that  he 
hath  not  his  full  Lading  aboard  at  the  time,  the. Mafler 
is  at  liberty  to  contrail  with  another,  and  ihall  have 
Freight  by  way  of  Damage  for  the  time  that  thofe  Goods 
were  aboard  after  the  time  limited  ;  for  fuch  Agreements 
being  of  a  Conditional  nature  Precedent,  a  Failure  as  to  a 
compleat  Lading,  will  determine  the  fame,  unlefs  after- 
wards affirmed  hy  Confent,  And  though  it  be  no  Prudence 
for  every  Merchant  or  every  Mafler  to  depart  from  the 
Contradl,  if  it  fhould  fo  fall  out  that  the  Agreement  as 
^0  the  Lading  is  not  performed  according  to  Promife, 
(feldom  or  ever  done  if  any  Part  be  aboard)  yet  it  is  the 


256  flDf  iftmf^t  att&  €i)atttv^^pmiz:S.  Bookii 

highefl  Juflice,  that  Ships  and  Mailers  fhould  not  be  In 

fettered,    but  Free:  for  otherwife  by  the  bare  lading  of  a 

Cafk  or  Bale,  they  might  be  defeated  of  the  Opportunity 

of  Paflage  or  Seafon  of  the  Year. 

Cro.  Car.'^Sz.      So  on  the  other  hand,    if  the  Veffel  is  not  ready,  the 

3  Le'vhz  283.  Merchant  may  Ihip  aboard  in  another  VefTei  the  Remain- 

^^ndua  &  ^^  ^^^  ^^  ^^^  Goods,   and  difcharge  the  firft  Skipper,  and 

Teg.ftitemfun-  rccover  Damages  againft  the  Mafter  or  Owners  for  the 

dus  iff  Leg.     reft.     This  is  grounded  upon  the    like  Reafon  as  the 

hac  difiinaio.  former. 

^ron  ^Ip  zt'  ^^^  therefore  by  the  Law  Marine.,  Chance,  or  feme 
other  notorious  Neceflity,  will  ekcufe  the  Mafttr  \  but 
then  he  lofeth  his  Freight  till  fuch  time  as  he  breaks ^rounJ^ 
and  till  then  he  fuftains  the  Lofs  of  the  Ship. 

But  if  the  Fault  be  in  the  Merchant,  he  then  muft  an- 

fwer  the  Mafter  and  the  Ship's  Damage,  or  elfe  be  liable 

to  entertain  the  Ship's  Crew  ten  Days  at  his  own  Charf^e; 

At.zt^.  Legem  but  if  after  that,  then  the  full  Freight:  And  if  any  Da- 

Naval.  Art.    magc  happens  afterwards,    the  Merchant  muft  run  the 

{aii'iiodS-  R^^4^^  of  ^^^^y  ^"^  "°^  the  Mafter  or  Owners.    (5)  But 
j^aym.  '220/*  W  the  Common  Law^  fo  long  as  the  Mafter  hath  th?  Goods 
I  Fen.  190,    on  Ship-board,  he  muft  fee  them  forth-coming. 
^3^.  IV.  Charter-parties  have  always,  by  the  Common  Lau)^ 

^Kebnz  11*2  ^^^  ^  genuine  Conftru6lion  as  near  as  may  be,  and  ac- 
135.'  '  cording  to  the  Intention  and  Defign,  and  not  according  to 
the  literal  Senfe  of  Traders,  or  thofe  that  Merchandiz. 
by  Sea,  yet  they  muft  be  regularly  pleaded ;  and  there- 
fore in  an  Adlion  of  Covenant  on  an  Indenture  dated  9 
05f.  38  EL  wherein  was  recited,  Whereas  by  Indenture 
Charter-party  dated  Sep.  8.  38  Eliz.  between  the  Plan:... 
and  Francis  Cherry  ;  the  Plaintiff  having  hired  of  him  a 
Ship,  for  a  Voyage  to  Dantzick,  upon  taking  the  Ship  it 
was  agreed  between  them,  that  the  Ship  fhould  be  laden 
with  Corn  at  Dantzick,  and  to  fail  to  Leghorn.  Now  hy 
the  faid  Indenture,  in  Confideration  the  Plaintiff  had  a- 
greed,  that  the  Defendant  fhould  have  the  Moiety  of  Com, 
quod  tunc  fuit^  or  afterwards  fhould  be  laden  in  the  Ship 
during  the  faid  Voyage,  the  Defendant  covenanted  to  p:i? 
the  Moiety  of  the  Money  for  the  faid  Corn,  quod  tunc  J- 
it,  or  afterwards  fhould  be  laden,  ^c.  and  allcdgeth/* 
fa^o,  that  O^.  9.   38  Eliz.  the  Ship  was  laden  withw 

Lafts  of  Corn,  and  for  not  Performance  of  this  Covenajit 



Chap. IV.  0t  JfrefoJlt a«D  €imttVpavtim  257 

the  A6lion  was  brought ;    the   Defendant  pleaded   that 
the  Deed  was  fealed  and  delivered  O^.  28.  38  E/iz.  ^ 
nud  ad  tunc  vel poftca  there  was  not  any  Corn  laden  there, 
.iiid  traverfeth  the  Delivery  05f.  9.  or  at  any  Time  after- 
wards before  the  28  Ocf.   38  Eliz.  And  it  was  adjudged 
'"'^n  Demurrer,    That  in  regard    the  PlaintiiT  declared 
ipua  a  Dyed  dated  0^7,  9.  38  Eliz.  it  fhall  be  intended  to 
jiave.ifs  EfTcncc  and  Delivery  at  that  time,  and  no  other  ; 
and  if  he  fliould  confefs  it  to  be  delivered  at  any  other 
"time,  it  would  be  a  Departure  from,  his  Declaration,  and 
the  Wordiufic  is  referred  to  the  Delivery,  and  not  to  the 
Date  J    and  if  it  were  Delivered  ten  Months  after  zh^ 
Dace,  he  lliould  not  have  the  Benefit  of  the  Cora  laden 
before  the  delivery :    And  therefore  the  Defendant  was  2  c^a.  263. 
adjudged  not  to  be  c'aarged   with  'paying  for  any  Corn  ojey  v.  Sir 
before   the  Delivery  of  the    Deed,    the   Words  of  thtBaptifi  Hicks, 
Deed  being,  that  he  (liould  pay  for  the  Corn  then  laden, 
l:jc,  which  [then)  is  referred  to  the  time  of  the  EiTence  of 
the  Deed  by  the  Delivery,  and  not  to  the  Date, 

Atkinfon  did  contract  with  Buckle  for  the  Carriage  of  3  Bulfi.  1^2. 
100  Quarters  of  Barley,  and  did  promife  to  deliver  unto  ^  ^'^^'  3  ^2. 
him  the  lOo  Qiiarters  of  Barley,  a  Ship  board  at  Barton 
Haven,  in  the  County  of  Tcrk^  to  carry  them  for  him, 
'  and  for  the  Carriage  thereof  did  promife  to  pay  to  him 
fomuch  i  and  Buckle  promifed  to  carry  the  fame  for  him, 
and  accordingly  brought  his  Ship  to  the  faid  Haven,  ex- 
pe<jLing  there  the  Delivery  of  the  100  Quarters  of  Barley  ; 
\)i\i  Atkinfon  came  not  to  deliver  the  fame  to  him,  where- 
upon Buckle  brought  his  Action  of  the  Cafe  upoft  the 
Promife,  and  upon  non  ajjumpfit  pleaded  had  a  Verdict 
and  Judgment,  v/hich  was  affirmed  upon  a  Writ  of  Error. 

Charter- Party  {Charta  partita.,   i.  e.  a  Deed  or  Writ-  ' 

ting  divided)  is  all  one  in  the  Civil  Law,  with  an  Inden- 
ture at  the  Common  Law.  It  fettles  the  Agreement  and 
Bills  of  Lading,  the  Contents  of  the  Cargo,  and  binds  the^ 
Mailer  to  deliver  them  well  conditioned  at  the  place  of 
difcharge,  according  to  the  Contents  of  i'a^  Charter- Party 
or  Agreement  ♦,  and  for  Performance,  the  Mailer  obliges 
HImfelf,  Ship,  Tackle,  and  Furniture^  to  fee  the  fame 
done  and  performed. 


R  Covenant 

258  Mftzigl^t anD  €f)avttvpavtit€*  Book  11. 

Covenant  /«-        Covenant   upon     a     Charter    Party    between    Bolton 

'^^  p'^  ^^  ^^A  Owner,  and  L^^  and  Morgan  Merchants,  Freighters  of  a 

^"^n'd  C.^on  Ship,  by  which  Bolton  put  to  Freight  the  Ship  in  a  Voy- 

the  other,  ^  age  to  Guinea  <it  48  /.  per  Menfem^  and  there  was  a  mutual 

quemlibet  eo-    Covenant  between  the  Parties  ^  qiierdibet  eoruni  modofe- 

Ta'  ^^^  ^^^  quente^  and  then  divers   Covenants  follo\y  concerning  the 

brought  a-       Ship's  Tackle  and  Performance  of  the  Voyage  ;  and  then 

gainil  one  on-  a  Covenant  for  the   Payment  of  the  Freight  [viz.)  when 

]y,  and  well,  the  Ship  arrived  at  Guinea^  the  Freight  then  due  was  up. 

on  Notice  to  be  paid   in   England^  and  when  fhc  arrived 

in  England  the  Refidue  from  the  time  of  tlie  lafl;  Payment 

was  to  be  paid.     And  faith  that  at  fuch  a  time  the  Ship 

arrived,  and  that  6  Months  and  10  Days  were  then  paft, 

which  came  to  fo  much,  whereof  Notice  v/as  given  -,  and 

that  after  fuch  a  time  the  Ship  arrived  at  England,  and 

that  the  Freight  for  6  Months,   from  the   time  of  the 

laft  Payment,  and  the  Freight  came  to  287  /.  45.  and  that 

the  Defendant  had  not  paid  any  of  the  Sums,  upon  which 

the  Defendant  demurred.     And  took  thefe   Exceptiof^^i 

to  the  Declaration: 

I  Mod.  Caf.         ^    Pqj.  j.|^jg  j.j^^|.  i-j-^g  A6lion  is  broudit  againft  one,  of 

Salk  205.       ^^^  Defendants  only,    omitting  the  other  ♦,  fed  non  allocs* 
//.  2.  tur^  the  Covenant  being  between  them  6f  quemlibet  eormi 

is  joynt  and  feveral  of  every  Part. 

2.  For  that  it  appears  upon  Computation,  the  Plain- 
tiff demanded  more  upon  the  firft  Breach  than  is  due  by 
30  J.  and  lefs  than  is  due  upon  the  fecond  by  16  s.  and  tho*! 
that  the  firft  may  be  cured  by  the  Jurors  finding  lefs,  or 
by  the  Plaintiff's  releafing  the   Overplus,    yet  where  he 
demands  lefs  than  his  due,  it  is  incurable  ;    and  cited  fe- 
veral Books  there  quoted  for  that  purpofe  in  Afrumpfit, 
wliere,  as  in  this  Cafe,  only  Damages  are  to  be  recover- 
ed y  and  on  the  other  Part  was  cited,  Cro.  Jac.  498.  P^«^ 
her  ten  v.   Shell  en  ^    ^  529.  Parker  v.  Cttrfon  ^  uxor,  fee 
2  Levi?iz  4..  Hulme   i^  S ambers,    ^  2  Vent.  129.   ^V^^kf 
&  Philips,    Hale  Chief  Juftice  took  a  Difference  between 
this  Cafe  of  Covenant,  and  Debt,  and  held  that  after  Ver- 
dict it  had  been  cured  without  queftion,  but  upon  Demur- 
rer there  may  be  fome  Doubt,  the  Demurrer  being  ge- 
neral, but  had  the  Demurrer  been  fpecial  it  had  been  ill* 
and  ruled  Judgment,    pro  ^Jhier,  2  Levinz  ^6,  ^  3  ^^^^ 
39.  y  50.  Bolton  and  Lee. 


Chap.  IV.  ®f  jft^eigfit  aiiB  €1^axUv^4'^ttit0.        259 

V.  If  Goods  are  fully  laded  aboard,  and  the  Ship  hath  Adleg^Rhod- 
koke  Ground,  the  Merchant  on  Confidcration  afterwards 
refolves  not  on  the  Adventure,  but  will  unlade  again  5  by 
the  Law  Marine  the  Freight  is  due.  ^  ,. 

And  if  the  Ship  in  her  Voyage  becomes  unable  without  Judg.Okron, 
the  Matter's  Fault,  or  that  the  Mailer  or  Ship  be  arrefted  ^^^'^f^'  ^'^ 
byfome  Prince  or  State  in  her  Voyage,  the  Mafter  may 
either  wend  his  ^hip,  or  Freight  another. 

But  if  the  Merchant  will  not  agree  to  the  fame,  then  Bigejl.Vauhs, 
M'Frei'^jt  becomes  due  for  fo  much  as  the  Ship  hath  /•  h-  f-  2. 
imed^   for  otherwife    the  Matter  is  liable  for  all  Da-  §-^^- 
mages  that  fhall  happen.     And  therefore  if  that  Ship,  to 
uliich  the  Goods  were  tranflatcd,  perifhed,  the  Matter 
Hiall  anfwer  -,  but  if  both  the  Ships  perifn,    then  he   is 

But  if  there  be  extream  Necettity,  as  that  the  Ship  is 
in  a  finking  Condition,  and  an  empty  Ship  is  pafTmg  by, 
or  at  hand,  he  may  tranfiate  the  Goods  -,  and  it  that  Ship 
finkorperitties,  he  is  there  excufed  :  But  then  it  mutt  be 
apparent  that  that  Ship  feemed  probable  ^nd  efficient. 

'Vi.  If  a  fet  time  be  fixed  and  agreed  upon  between  the  Leg.^uiRmof 
Merchant  and  the   Matter,  wherein   to  begin  and  fin ifii  i  ^^^^^^- 
his- Voyage,  ic  may  not  be  altered  by  the  Supra  Cargo,  '^,gXf^/^ 
without  fpecial  Committlon  for  that  Purpofe. 

If  a  Matter  Oiall  weigh  Anchor,  and  ftand  out  to  his 
Voyage  after  the  time  covenanted  or  agreed  on  for  his 
Departure,  if  any  Damage  happens  at  Sea  after  that 
titne,  he  fhall  refund  and  make  good  all  fuch  Misfortune  •, 
Yet  if  a  Charter-party  is  made,  that  the  Plaintiff  fliall  fail 
irom  Landon  to  Lhhon  with  the  iirtt  Yv'"ind  and  Opportu- 
nity, ^c,  in  Confideration  of  which  the  Merchant  did 
covenant  to  pay  fo  jnuch  for  Freight  -,  the  Ship  departs 
not  with  the  firft  Vv^ind  and  Opportunity,  yet  afterwards 
hmks  Ground,  and  arrives  at  her  Port,  the  Freight  in 
this  Cafe  is  become  due  ;  for  there  is  nothing  can  bar  the  Popham.  \Gi. 
Ship  of  her  Freight  but  the  not  Departure,  for  only  that  ^^f^^  SQj' 
in  Law  is  traverfable,  being  material  .to  avoid  the  Pay- 
ment of  Freight  -,  but  to  fay  the  Ship  did  not  "depart 
^ith  the  next  Wind,  is  but  a  Circumttance  which  in 
ftri^lnefs  of  Law  is  not  traverfable.  j   i  jj     c^ 

^  If  it  be  agreed  that  the  Matter  ttiall  fall  from  London  to  lSLf«  :I;f 
^■^torn  in  two  Months,  and  Freight  accordingly  is  agreed  ^  Cailima- 

R  :j  on,  chus. 


26o  flDf  jfrcigljt  anD  Cfjarte^partiegf.  Bock  iil 

on,  if  he  begins  the  Voyage  within  the  two  Months,  tho* 

he  does  nor  arrive  at  Leghorn  within  the  time,  yet  the 

Freis!;ht  is  become  due. 

2  yern.  210.        Where  the  EnjU India  Company  by  Charter-Par ty  might 

keep  the  Ship  a  long  time  in  India^  and  did  fo  keep  her 

until  Hie  was  unfit  for  Service,  and  could  not  come  home; 

they  were  obliged  in  Chancery  to  pay  the  Damage  -,  t(io' 

by  the  perufing  of  the  Charter- Party  it  was  payable  at 

the  Return  of  the  Ship. 

2;.. ...  212.        So  where  no  Freight  was  to  be  paid  for  the  Cairwo 

outwards  but  freight  for  the  Cargo  homewards  ;    and  the 

Fa6lor  abroad  had  no  Goods  to   load   her  homewards 

Payment  of  the  Freight  w^as  decreed. 

2  Fern.  727.        So  though  the  Officers  and  Mariners  o;ave  Bond  not  to 

demand  Wages  unlefs  the  Ship  returned  to  London  y  the 

arrived  at  a  delivering  Port,  and  afterwards  was  taken  by 

the  Enemy.     They  had  their  Wages   to  the  delivering 

Port.  - 

leg.^  Rekgatt       VII.  If  the  Ship  is  freighted  from  one  Port  to  another 

L't^ u/^^'Je      Po^j  ^^^  thence  to  a  third,  fourth,  and  fo  home  to  the 

Sip.  ^vio.         Port  from  whence  fhe  firfl   failed,  (commonly  called.^ 

"Trading  Voyage)  this  is  all  but  one  and  the  fam^e  Voyage, 

fo  as  it  be  in  Conformity  to  the  Charter-parly. 

^rlti.  g.  Jac.       A  Merchant  agrees  with  a  Mailer,  that  if  he  carries 

znC.B.Rot.    j^jg  Goods  to  fuch  a  Port,  he  will  then  pay  him  fucha 

Bright 'verfus   ^^^^  '  ^"  ^^^^  Vovage  the  Ship  is  afiaulted,  entred  and 

Cooper,  I        robbed  by  Pirates,  and  part  of  her  Lading  taken  forth, 

BrQi.>:nh  zi,    and  afterwards  the  Remainder  is  brouo;ht  to  the  Port  of 

'     difcharge,  yet  the  Sum  agreed  upon  is  not  become  due, 

for  the  Agreement  is  not  by  the  Mafcer  performed. 
But  by  the  Civil  Law  this  is  !i)is  major  or  cafus  forluitus, 

there  being  no  Default  in  the  Mailer  or  his  Mariners,  ffid 

the  fame  is  a  Danger  or  Peril  of  the  Sea,  which  if  not  in 
\^/''  ^"r  r  ^^''^^  Agreements  expreffed, yet  is  naturally  im. plied  :  For 
Rerr'/nerznd  '  ^'^^^  Certain,  had  tliolc  Goods,  wjiich  the  Pirates  carried 
fogaj/a'sCak.  away  in  llrels  of  Weather,  Navis  levayida  caufa^  been 
Pio'witen  Com.  throwu  over-board,  the  fame  would  not  have  made  a  Dif- 
Euta  Pirate  ability  as  to  the  Receipt  of  the  Sum  aerecd  on  ;  for  by 
my."  Vide  ^  ^^^^^  ^^^  Cpmmcn  Law  and  the  Law  Marine^  iht  Au  or 
Q\\di^.Firao.  God,  or  tlmof  an  Enemy,  flial)  noways  work  a  Wrong 

in  A^flions  private. 

yiii.  li 

Chap.  IV.  jgDf  jfrnglit  stiD  €'i)avttvpattit0.        26 1 

.Vin.  If  a  Ship  be  freighted  by  the  Tun,  and  fhe  is  full 
faSen  according  to  the  Charter-party^  the  Freight  is  to  be 
paid  for  the  whole ;  otherv/ife  but  for  fo  many  Tun  as  the 
lidirig  amounted  to. 

'"If  Freight  be  contracted  for  the  lading  of  certain  Cat-  Leg.fiquis 
tie,  or  the  like,  from  Dublin  to  Wcft-Cheftcr^  if  fome  of  Cod.dejufiit, 
happen  to  die  before  the  Ship's  Arrival  at  Weft-  ^ MJ^^^- 

'efler,  the  whole  Freight  is  become  due  as  well  for  the 
dead  as  the  living  *.  *Arg.Leg.fcio 

But  if  the  Freight  be  contra61:ed  for  the  tranfporting/'-  ^i^"]"'^^' 
them,  if  Death  happens,  there  arifeth  due  no  more  Freight  ^Hl'^^^^  /*% '  if 
than  only  for  fjch  as  are  living,    at  the  Ship's  Arrival  at  d&condit.  S  ' 
,  her  Port  of  Difcharge,  and  not  for  the  Dead  f .  demon.  Arg.-j, 

^llf'the  Catde  or  Slaves  are  fent  aboard,  and  no  agree-  i  Leg-qmope- 
ment  is  made  either  for  lading  or  tranfporting  them,  but  ^"^^/^  /f^' 
generally,  then  Freight  fhall  be  paid  as  well  for  the  Dead  quidatn  &  §. 
as  the  Living.  f»-ff-  ^^^^'* 

If  Freight  be  contradled  for  the  tranfporting  of  Wo-  ^jJ^^^  r.. 
men,  and  they  happen   in  the  Voyage  to  be  delivered  of  ^^j/^J^/^^^^' 
Children  on  Ship-board,  no  Freight  becomes  due  for  the  jr.  heat. 

"The  Charter-pcirty  does  fettle  the  Agreement.^  and  the  There  are  3 
Bills  of  Lading- the  Contents  of  the  Cargo,    and  binds  ?^^^^ °^  ^^^' 
ihe  Mafler  to  deliver  them  v/ell  conditioned  at  the  f^lace  ^j!^f^|^^\J^g 
of  Difcharge,  according  to  the  Contents  of  the  Charter-  one  to  be 
party  or  Agreement  ^    and  for  Performance,  the  Mailer  ^ent  over  Sea 
obliges  Himfelf,  Ship,  Tackle  and  Furniture  to  fee  the  'I  ^';^  'J^°^ 

c         Si  1  r  ■>  tfie  vjrooos  arc 

lame  done  and  performed.  configned  to. 

If  Goods  are  fent  aboard,  generally  the  Freight  muft  the  other  for 
be  according  to  Freight  for  the  like  accuftomed  Voy-  ^^^e  Mafter, 

^fyog  ,  and  thelaft 

If  a  Ship  fhall  be  freighted  and  named  to  be  of  fuch  a  chant  or 
Burden,  and' being  freighted  by  the  Tun,  fhall  be  found  Lader. 
lefs,  there  fhall  no  more  be  paid  than  only  by  the  Tun 
for  all  fuch  Goods  as  were  laded  aboard. 

If  a  Ship  be  freighted  for  tv/o  hundred  Tuns  or  there- 
abouts, the  addition  of  ihereahouts  is  commonly  reduced 
to  be  within  five  Tun,  more  or  lefs,  as  the  Moiety  of 
the  number  '^en^  v/hereof  the  whole  number  is  com- 

If  a  Ship  be  freighted  by  the  great,  and  the  Burden  of  chaf^jonti 
Jp  not  exprefied,  yet  the  Sum  certain  is  to  be  paid.  n)erf.U-verhg, 

R     3  IX.     If%/^i2  20. 

262  fiDf freight atiD €i)avuvpmtit^.  Book ii. 

Leg  penult.  §        IX.  If  the  Ship,  by  realbn  of  any  Fault  arifing  from  the 
9./'.  dclocat.  Freighter,  as  hiding  aboard  prohibited  or  unlawful  Com- 
modities,   occafions  a   Detention,   or   otherwifc  impedes 
the  Ship's  Voyage,  he  fhall  anfvvcr  the  Freight  contrafted 
and  agreed  for. 
Trin.  ^.Ja£.        If  a  Ship  be  freighted  out  and  in^    there  arifes  due  for 
B.  R.  Bright.  Freight,  nothing,  till  the  whole  Voyage  be  performed  : 
ijerf.  Cozvper,  g^  ^^^^^  -^'  ^k^  g,^^    ^     ^^  jg  ^^^  ^.^^      comjng  home,  the 

I  part.  zi.      Freight  outwards,  as  well  as  inwards  becomes  loll. 

13th  7^6^'  1680,  in  Chancery,  a  Part-Owner  of  a 
Ship  fued  the  oth^r  Owners,  for  his  Share  of  the  Freight 
of  tYiS,  Ship  which  finiflied  her  Voyage  ♦,  but  the  other 
Owners  fet  her  out,  and  the  Complainant  would  wk 
join  with  them  in  fetting  her  out,  or  in  the  Charge 
thereof  ;  whereupon  the  other  Owiiers  complained jin 
the  Admiralty  -,  and  by  Order  there,  the  other  Owners 
gave  Security,  That  if  the  Ship  perifhed  in  the  Voyage, 
to  make  good  to  the  Plaintiff  his  Share,  or  to  that  ef- 
fed;  in  fuch  a  Cafe,  by  the  Law  Marine,  and  Courfeof 
the  Adm.iraky,  the  Plaintiff  was  to  have  no  Share  of 
the  Freight.  It  was  referred  to  Sir  Lionel  Jenkins  to 
certify  the  Courfe  of  the  Admiralty,  who  certified  ac- 
cordingly, and  that  it  was  fo  in  all  places,  for  otherwife 
there  would  be  no  Navigation,  whereupon  the  Plaintiff's 
Bill  was  difmiff.  See  more  of  Freight,  and  the  Inci- 
dents thereunto,  Lex  Mercaioria  ico.  w,a 

Leg.  Oleron.  X.  If  a  Mailer  freights  out  his  Ship,  and  afterwards 

Leg.  Na'ual.     fccrctly  takes  in  other  Goods  unknown  to  the  firil  La* 

Rhod.Jrt.zz,  ^gj.5^  |3y  j-i^g  i^^^^  Marine  he  lofes  his  Freight;  and  if  it 
fhould  fo  fall  cut,  that  any  of  the  Freighter's  Ggods 
Ihould  for  Safety  of  the  Ship  be  caft  over-board,  thetcfl 
fhall  not  become  fubjecl  to  the  Average,  but  the  Mafter 
muff  make  good  that  cut  of  his  own  Purfe  :  But  if  the 
Goods  are  brought  into  the  Ship  fecretly  againft  his 
Knowledge,  it  is  otherwife  ;    and  Goods  fo  brought  in^ 

Cov'hl  del       ^^^  (^iVTit  may  be  fubjeded  to  what  Freight  the  Mailer 

jlf^;-.*  thinks  fitting. 

If  the  Ship  puts  into  any  other  Port  than  what  flie  was 

Le<r,  Oleron.  freighted  to,  the  Mafter  fhall  anfv/er  Damage  to  the 
Merchant  j  but  if  forced  in  by  Storm,  or  by  Enemy,  oi* 
Pirates,  he  then  muff  fail  to  the  Port  conditioned  at  his 

own  Cofts, 




Chap.  IV.  £)f  f tei'aljt  auh  C^arter^pattiejj.         263 

j'.GencnjlIy  the  touchmg  at  fever al  Forts  by  Agreement^  im-  Kule. 
fort^  not  a  Diverjiiy^  but  a  Voyage  entire. 

XL  If  FalTengers  having  Goods,  happen  to  die  on 
Ship-board,  the  Mafter  is  to  inventory  their  Concerns, 
and  the  fame  may  keep  a  Year  ♦,  and  if  none  claim  the 
fame,  the  Mafher  becomes  Proprietor  defeafable  :  But  the 
Bedding  and  Furniture  of  the  Parties  become  the  Mailer's 
and  his  Mates,  and  the  Clothing  are  to  be  brought  to 
the  Ship-Maft-Head^  and  there  praifed  and  diftributed  Leg.  Conplat, 
an^ongft  the  Crew^  as  a  reward  for  their  Care  of  feeing  the  del  Mtre, 
Body  put  into  the  Sea. 

The  Captain  died  leaving  Money  on  Board,  the  Mate 
became  Captain,  and  improved  the  Money  :    He  fliall,  J  ^'     ^  * 
on  Allowance  for  his  Care  in  the  Management  of  it,    ac- 
count for  the  Profits,  and  not  for  the  Intereft  only. 

XIL  The  Lading  of  the  Ship  in  Conftrudlion  of  Law,  -^^l^-  'm  %. 
[^tacitly  obhged  for  the  Freight,  the  fam.e  being,  in  Point  ^^^^v^'^-f^M- 
of  Payment,  preferred  before  any  other  Debts  to  which  "ouid erzo  Cod. 
the  Goods  fo  laden  are  liable,  though  fuch  Debts,  as  to  locat. 
time,  were  precedent  to  the  Freight  •,    for  the  Goods  re- 
main as  it  were  bailed  for  the  fame  :  Nor  can  they  be  at- 
tached  in  the  Mailer's  Hands,    though  vulgarly  it  is  con^ 

Ships  deierve  PF^ges  like  unto  a  Labourer  •,  and  there- 
fore in  the  Eye  of  the  Law,  the  Aclions  touching  the 
fame,  are  generally  conilrued,  favourably  for  the  Ship  ^^^»h  '^^^./«* 
and  her  Owners:  And  therefore  if  four  Part-Owners  ^^t"?/ ^""f^' 
ofEve,  fhall  make  up  their  Accounts  with  the  Freigh- 
ters, and  receive  their  ProDortiohs,  yet  the  fifth  Man 
may  fue  fingly  by  himfelf  without  joining  with  the  reft  ; 
knd  this  as  v/eli  by  the  Common  Ldiu  as  the  Law  Ma- 

XIII.  A  Ship  in  her  Voyage  happens  to  be  taken  by  an 
Enemy,  afterwards  in  Battle  is  re- taken  by  another  Ship 
in  Amity,  and  Reilitution  is  made,  and  (he  proceeds  on 
in  her  Voyage,  the   Contract  is  not  d^itermined,  though  yR.iStaiha;^ 
the  taking  by  the  Enemy  divefted  the  Property  cut  of  the  Abridg.  54. 
Owners ;  yet  by  the  Law  of  War  that  PoiTelTion  was  de- 
feafeable,  and  being  recovered  in  Battle  afterwards,  the  InJurePoftn- 
Owners  became  re^inveftcd  :  So  the  Contrad,  by  Fidion  ^^'"^5;/'.'. 
of  Law,  became  as  if  flie  never  had  been  taken,  and  fo  ^^/}^   ^.^'^/'^ 
the  entire  Freight  becomes  due. 

R  A.  Covenant 

264         ©f  ftmljt  ann  €\^amtrpanit$.  Booj:  Hh 

Covenant  by  a  Charter- Party,  that  the  Ship  fhall  re- 
turn within  the  River  of  'Thames  by  a  certain  time 
{periculis  i^  cafualiiaUhus  Marium.,  Anglue^  Dangers  of  the 
Sea,  exceptis)  and  after  in  the  Voyage,  and  within  "the 
time  of  the  return,  the  Ship  was  taken  upon  the.  Sea, 
fer  homines  beUicofos  niodo  guerrino  arraiatos^  to  the  Covc- 
liantor  unknown,  i^c.  iif  cihinde  hue  afque  detenta  fuit  )dj 
them,  per  qiiod  he  could  not  return  within  the  River  of 
Thames  v/ithin  the  tirtie  mentioned  in  the  Covenant. 
Refolved  this  Impediment  was  within  the  Exception,:  for 
tiiefe  Words  intend  as  well  any  Danger  upon  the  Sea  hy 
Pirates  and  Men  of  War,  as  Dangers  of  the  Sea  by  Ship- 
wreck, Temped,  or  the  like.  Pickering  and  Barkla^ 
sales  132.  ^  2  Roll's  Abridg.  248.  "  ^^/ 

Boya^j.  Cole,  XIV.  If  Freight  be  taken  for  100  Tuns  of  Wine,  and 
Hill.  2^,  27  twenty  of  them  leak  out,  fo  that  there  ~  is  not  above 
eight  Inches  from  the  Buge  upwards,  yet  the  Freight  be- 
comes due  :  One  Reafon  is,  becaufe  from  that  Gage  the 
King  becomes  entitled  to  CuPcom,  but  if  they  be  under 
eight  Inches,  by  fome  it  is  conceived  to  be  then  in  the 
Election  of  the  Freigjirers  to  fiins;  them  up  to  the  Maflfir 

o  ox 

ibr  Freight,  and  the  Merchant  is  difcharged.  But  molt 
conceive  otherv/iie  ;  for  if  all  had  leak'd  out,  (if  there  was 
no  Fault  in  the  Mafter)  there  is  no  Reafon  the  Ship 
fliould  lofe  her  Freight  ;  for  the  Freight  ariies  from  the 
Tunnac:e  taken,  and  if  the  Leaka&;e  was  occafidned 
through  Storm,  the  i^imc  perhaps  may  come  into  ati 
Average.  Befides,  in  Bcta-deaux  the  Mafter  ftowsnot  the 
Goods,  but  the  particular  Officers  appointed  for  that 
Purpofe,  qucd  7iota,  Perhaps  a  fpecial  Convention  inay 
alter  the  Cafe. 

Mofl:  certain,  if  a  Ship,  freighted  by  the  Great,  be  caft 

i^ar,  2.  B.  R. 

.When  fuch  away,  the  Freight  vanilhes  -,  but  if  by  the  Tun  or  Pieces 
;:^!:°ll"'"'!v„  of  Com.modity,  and  Ihe  happens  to  be  caft  away,  after- 
Infured  com-  Wards  Part  is  laved  ;  doubted  whether  pro  rata  Ihe  ought 

jTioniy  tranf-    not  to  be  anfwered  her  Freight. 

fer  thofe 

Goods  over  to  the  Aflurors,  who  take  them  towards  SatisfatH-ion  of  what  ibey  p^y 

hy  Virtue  of  their  Subfcriptions. 

Debt  upon*  a  Charter-party  upon  a  Penalty,  the  Co- 
venant was  to  pay  To  much  per  Tun  for  Freight,  and 
Breach   v/as  afUgned  in   non  Payment,  for  fo  many  Turti 


chxp.  IV.  0(  jFveigtjt  ana  €l9mmpavtit?.         265 

d  an  Hogiliead,  which  came  to  fo  much  :  Upon  De- 
lurrer,  'twas  held  the  Declaration  was  ill,  for  the  Co- 
venant is  only  to  pay  fo  much  per  Tun  ;  aliter  if  it  had 
beenjto  my  fecundum  ratam  of  fo  much  per  Tun.  Roe  a-  Teh,  134. 
aainft  5^in/J.  .2  Lm;72;  1 24.  ^  3  Kehle  421. 
°  XV.  If  a  Merchant  takes  F'reight  by  contra61:ing  with 
a  Mariner  that  is  not  a  Mafter,  if  Lofs  happens,  he  muft 
be  contented  to  fit  down  without  any  Remedy  againft  the 
Owners ;  but  perhaps  fuch  a  Mariner  for  fuch  an  Ad  may 
fubjed  himfelf  to  an  Adion. 

£ut  if  there  be  a  Fault  commited  by  a  Mariner  which  j^hfi,  146. 
was  hired,  or  put  in  by  the  Mafter  or  Owners  ;  there  for 
Reparation  the  Owners  become  liable. 

XVI.  The  Mafter  is  not  bound  to  anfwer  Freight  to  JohannesLo- 
theOv/ners  for  Pallengers,  if  they  are  found   to  be  una-  ^"^^^^'  ■^'^' 

ble  to  pay. 

If  Ship  by  Charter-party  reciting  to  be  of  the  burden  of 
200 Tuns  is  taken  to  Freight  for  a  Sum  certain,  to  be 
paid  at  her  return,  the  fum  certain  is  to  be  paid,  though 
the  Ship  amounts  not  to  that  Burden. 

IfaShip  is  freighted  after  the  rate  of  20 /.  for  every 
Month  that  fhe  Iliali  be  out,  to  be  paid  after  arrival  at 
tlie  Port  Q^ London  -,  the  Ship  is  caft  away  coming  up  from 
t\itdowns^h\M  the  Lading  is  all  preferved  ;  yet  the  Freight 
is  become  due  :  For  the  Money  arifes  due  monthly  by  the 
Contrad,  and  the  Place  mentioned  is  only  to  ftiev/  where 
payment  is  to  be  made,  for  the  Ship  deferves  Wages  like 
ai/Iariner,  who  ferveth  by  the  Month  -,  and  though  he 
dj^^.'in  the  Voyage,  yet  his  Executors  are  to  be  anfwered 
fro  rata.  Befides,  the  Freight  becomes  due  by  intend- 
ment on  the  delivery  or  bringing  up  of  the  Commodities 
tothe  Port  of  London^  and  not  of  the  Ship. 

,:lf;fiMan  freights  a  Ship  out,  and   covenants  that   the     ^  j.^  ^.^3^ 
Ship  with  the  firft  Wind  and  Opportunity  ftiould  fail  out  J  j„i  204. « 
of  that  Port  to  Cales^  and  the  Freighter  covenants  that  he  Dy^  76.  a. 
for  the  Freight   of  all  the  Premiffes   would  pay  unto  the  2  ^and.  3-0. 
Mafter   184/.  pro  tola  iransfretatione  omnimn  premiffarum^ 
if  the  Mafter  doth   not   aver  that  the  Ship  did  arrive  at 
the  Port  of  Cales^  he  cannot  maintain  an  Action   againft 
the  Freighter. 

•  If  the  Mafter  enters  into  a  Charter-Party    for   him- 
fdf  'and  OwnerSj  the  Mafter  in  that  cafe  may   releafe 




266  iS>t  svmU  ana  Cftarte^pattiejs,  Book  ii. 

the  Freighters  without  advifing  with  the  Owners-,  butr 
the  Owners  let  out  to  Freight  fuch  aShip  whereof  7. 5 
is   Mafter,    though  the  Mailer   covenant   in  the    fame 
Charter-party  and   fubfcribes,  yet  his  Releafe  in  that  cafe 
will  not  bind  the  Owners,  but  the  Owners  Releafe  on  the 
other  hand  will  conclude  the  Mafter :  And  the  reafon  is 
for  that  the  Mafter  is  not  made  a  proper  Party  to  the  In- 
denture.    And  fo  it  was  ruled,  where  an    Indenture  of 
Charter-party  was  made  between  Scudamore  and  other  Ow- 
ners of  the  good  Ship  called  the  B.  v/hcrtof  Robert  Pit, 
man  was  Mafter  on  the  one  Part,  and  Vandenftene  on  the 
other  Part;  in  which  Indenture  the  Plaintiff  did  coven: 
with  the  fiid  Vandenftene  and  Robert  Pitman^  and  boii 
themfelves  to  the  Plaintiff  and  Robert  Pitman   for  perfor- 
Cro  E/iz.  56  mance  of  Covenants  in  6co  /.  and  the  Conclufion  of  the 

Scudaraore  ^  Indenture  was,  "■ In  witnefs  whereof  the  faid  Robert 

ar  <verfusPit  piffyi^H  put  his  Hand  and  Seal,  and  delivered  the  fame-, 
£//i  inB^R.  ^^  ^^  Adion  of  Covenant  for  not  performing  certain  Go- 
cited  in  Co^e  venants  in  this  Indenture,  the.  Defendant  pleaded  the 
^hpt.fol.  Releafe  o^ Pitman  \  whereupon  the  Plaintiff  demurred; 
^73.  And  it' was  adjudged,  That  the  Releafe  o'i  Pitman  did  not 

^coT^^cliid^'^^^^^  Plaintiff,  becaufe  he  was  no  Party  to  the  Inden- 
^  3  Lenjinz    ture  ;  and  the  diverfity  in  that  cafe  w^as  taken.and  agreed 
238.  Gilby     between  an  Indenture  reciprocal  between  Parties  on  the  one 
'v^^ffii  Copley,  jQjjg^  jjj^j  Parties  on  the  other  fide,  as  that  was  •,  for  there 
^cmra    ^       ^^  Bond,  Covenant  or  Grant  can  be  made  to  or  vvith  any 
that  is  not  party  to  the  Deed  ;  but  where  the  Deed  indent- 
ed is  not  reciprocal,  but  is  without  a  Between^  &c.  as  Om- 
7iibiis   Chrifti  fidelibus^  &c.  there  a  Bond,  Covenantor 
Grant  may  be  made  to  divers  feveral  Perfons. 

If  an  Indenture  of  CZ'^r/fr-pt^r/j  be  made  between //. 
and  B.  Owners  of  a  Ship  ol  the  one  Part,  and  C.  and  D. 
Merchants  of  the  other  Part,  and  A.  only  feals  the  D:ed 
of  the  one  Part,  and  C.  and  D.  of  the  other  Part ; 
but  in  the  Indenture  it  is  mentioned  that  A.  and  B.  co- 
venant with  C.  and  D.  and  C.  and  D.  covenant  with 
A,  B,  in  this  Cafe  J.  and  B.  may  join  in  an  Aftiona- 
gainft  C.  and  D.  tho'  that  B.  never  fealed  the  Deed,  for 
he  is  a  Party  to  the  Deed,  and  C  and  D.  have  fealed  the 
other  Part  to  B.  as  well  as  to  J.     Clement  agalnft  Henleji 

2  Rolls  Abr.  22. 



li  (jp-AP.  IV.  ©f  f  reigtft  anh  €^avttv^^pattit§.         267 

XVII.  Covenant  upon  a  Charter-party^  by  which  the  Covenants 
Mafter  of  the  Ship  covenants  to  fail  with  the  firft  fair  mutual  fhall 
r  Wind  to  Barcelona^  2i\-\6.  that  the  Mariners  fhall  attend  edone^a^?[i 
with  a  Boat  to  relade  the  Ship,  and  then  to  return  with  the  other. 
the  6r(l  fair  Wind  to  London^  and  to  unlade  and  deliver 
the  Goods,  and  the  Merchants  covenant  to  pay  fo  much 
for  Freight,  and  fo  much  for  Demurage  every  day  ;  the 
Mafter  brought  his  Acflion  for  the  Freight  and  Demu- 
rage, and  declares  that  he  failed  fuch  a  Day  with  the  firft 
fair  Wind,  and  upon  all  the  other  Points.  The  Defen- 
dant, quoad  iht  Freight,  that  the  Ship  did  not  return  di- 
redly  to  London^  but  went  to  Alicant  and  Tangier  and 
made  divers  Deviations,  and  by  thefe  delays  the  Goods 
were  ff^oiled,  and  as  to  the  Demurage,  that  this  was  oc- 
cafioned  by  the  Negligence  of  the  Mariners  in  not  attend- 
ing with  the  Boat  to  relade  the  Ship  ;  to  which  the  Plain- 
tiff demuired,  and  per  Curiam  pro  ^ler.  for  that  the  Co- 
venants are  mutual  and  reciprocal,  upon  v/hich  each  ihall 
have  his  Action  againft  the  other,  but  fnall  not  plead 
the  breach  of  one  in  bar  of  another,  for  perhaps  the  da- 
mage of  the  one  fide  and  of  the  other  are  not  equal,  3  Le* 
vinz^^i.     Cole  centra  Shallet.    &  Tho.  Jones  2.16,  Show- 

frjagainfl  Cuamore. 

In  Covenant  the  Plaintiff  declared,  that  he  covenanted  Pica  that  a n- 
to  fail  with  a  Ship  to  D.  in  Ireland^  and  there   to  take  ^werstoPart 
280  Men  of  the  Defendant's,  and  to  carry  them  to  Jamais  r"^^lV^68 
ca^  and  the  Defendant  covenanted   to  have   the  280  Men  ^/,  ^.^Jq  J 
there  ready,  and   to  pay.  for  their  carriage  5/.  for  each  10.433,434. 
MaDj,  and  that  the  Defendant  had  not  the  2,80  Men  rea-  Cro,Jac.  27. 
dy,  but  that  he  had  180,   which  he  took  on  Board,  and  ^^Ztl^^^' 
carried  them,  but  that*  the  Defendant  had  not   paid  for  7,^^^^/,  ^02'. 
them-,  the  Defendant  pleaded  that  he   had  the  280  Men  Plon.vd.  138. 
JT^ady,    and  tendered   to   the  Plaintiff,  who   refufed    to 
re5:^ive  them,  but  faid  nothing  as  to  the  carrying  of  the 
i,So  Men,  nor  to  the  Payment  for  them  -,  and  for  that  it 
was  not  a  Plea  to  all,  Judgment  was  given  for  the  Plain- 
tiff upon  Demurrer,   1  Levinz  16 ,    1  Kcble  100. 

C  H  A  P. 

[  268  ] 

CHAP.     V. 

0(  mvWh, 

I.  Of  Goods  tvrecktf  as   in  relationSWl.   Of    Flotfam,     JetfaB), 

to  the  Alteration  of  the  Property 
by  the  Ci-vil  Lanxj. 
II.   Of    the    Prefervation  of  Goods 
wreckt,    and    the  Punijhment   of 


Lagan,    nvhere    the  Kir"  '' 
have  the  fame,  and  -xtvA  ... 
the    Grant    of   Wreck  thfjamt 
paj/es  I  and  nvhere  a  Suhjc£i'  Mat 

thofe  that  Jhall  add  Mifery  to  the  \      prefcrihe. 

Condition   of.Juch   Perjons  fo    di-   VII.   OfShips'WXtQ^&iandnoCrta 


III.    Of  Goods  \vrtc]^t,  their  Prefcr- 
'vatton  according    to  the  Lavos   of 
Oleron,   /jWo/' England,  and  of 

ture  in  them,  yet  no  Wreck;  anl 
of  Ships  for faken,  njohether  in  lav 
accounted  lojl  or  Rureckt,  or  bli- 

the  Punijhment  of  thofe  that  Jhall  \\' III.   Of  the  SherlJ^s  Dutyasinrt- 

lation  to  Goods  wreckt;  W»/ 
Oivners  their  time  of  claiming  ihiir 

tjot  make  Reftitution.. 

IV.  Of  Contribution  (where  the  Ship 
periJheSf   and  the  Goods  are  allfa- 

-  fvedy  andivhere  not.  j  IX.   Wreckc  Goods  not  to  pay  Cu 

V.  The    King    ^  Great.  Britain'j  i      /lom. 

Prerogative  as  in  relation  '  to  X.  Of  Wreck,  in  the  IHe  [f 
Wreck  afid  other  Royalties  of  the  \  Wight,  not  in  the  Admiral  mi'-)- 
Sea .  out  fpecial  (Fords . 

I.  Y  N  matters  of /Fr^i:^  there  is,  as  it  were,  aContraiS: 
X  between  them  which  have  loft  their  Goods  by  fuch 
Misfortune,  and  them  upon  whofe  Lands  the  Goods  and 
Merchandize  are  driven,  that  the  fame  be  reftored  to  them 
or  thofe  that  claim  under  them.     And  therefore  by  the 
de^huenZ/'  ^''^'^  ^^'^^  ^^  ^^  prccifcly  forbid,  that  no  Man  fhall  med- 
ruina  &  liau-  die  with  fuch  Goods  a^  are  wreckt  ;  and   fuch  as  are  pro- 
jragio.  ved  to  have  ftoln  any  thing  thereout,  are  holden  for  Rob- 

bers j  for  that  fuch  Goods  being  caft  on  Land  and  reco- 
•^^.S'-44-  ^'^^  vered  out  of  the  Sea,  remain  ftill  his  who  was  the  Owner 
acq,  ter.    m,  ^^^^^s^^  ^^^  defcend  upon  his  SuccciTor;  neither  Efchcat 
to  the  King,  neither  to  any  other  to  whom  the  King  hath 
granted  fuch  Royal  Privilege. 

The  reafon  why  the  Laws  were  fo  ftriclly  declared  by 
the  Romans,  was,  for  that  by  the  Laws  of  i^ W^J,  it  any 

Ship  had  become  Wreck,  though  all  the  Perfons  were  h- 



chap.v,  m  esirecfi*  269 

'  vedand  alive,  yet  the  Ship  and  Goods  became  feizable  by 
the  Lord :  But  the  fame  being  barbarous,  was  afterwards 
repealed  and  abrogated. 

The  Emperor  CGr>ftanftine  the  Great  lays,  in  this  Cafe, 
if  any  Ship  at  any  time  by  any  Shipwreck  be  driven  to 
rhelhore,  or  touch  at  any  Land,  Let  the  Owner  have  it^  ^^i-  i./z^.  u. 
end  lei  not  ray  Exchequer  meddle  with  it :  For  what  Right    '  ^   ^w^g- 
hath  my  Exchequer  in  another  man^s  Calamity^  fo  that  it 
jhould  hunt  after  Gain  in  fiich  a  woful  Cafe  as  this  is  ? 

And  yet  if  no  Kindred  appear  within  a  Year  and  a  Day, 
or,  appearing,  prove  not  the  Goods  ihipwreck'd  to  be 
theirs,  the  Goods  come  to  the  Exchequer^  even  by  that 
Law  :  So  much  that  Law  condemns  carelefTnefs,  which  is 
written,  zngilantihus  i^  non  dormientibus^  ^c.  ■  And  with 
this  agree  the  Laws  of  Oleron  and  the  Laws  of  this  Land, 
as  taken  out  of  thofe  Imperial  Laws,  in  that  Point,  as  is 

II.  The  Civil  Law  was  ever  fo  Curious  and  Careful  to 
preferve  the  Goods  of  fuch  miferable  Perfons,  that  if  any  Jj^^f^J^  ^^' 
Hiould  Ileal  fuch,  they  fhould  pay  four-fold  to  the  Ow-  kg.ineumcum 
ner,  if  purfued  within  a  Year  and  a  Day,  and  as  much  auth.feq,  de 
10  tht  Prince  or  his  Admiral :  So  careful   were  they,  and  ^'^^•^^-§''3-''« 
fo  exa61:  in  requiring  Reftitution,  that  the  very  dealing  of -^^^^^  ^naupa  ' 
a  Nail,  or  the  Worth  thereof,  obliged  the  Thief  to  the 
Reftitution  of  all  the  remaining  Goods.     And  by  the  'Em- 
^trox  Antonitts  it  was  made  a  Law  for  fuch  fort  of  Men, 
that  they  Ihould  bebatten'd  and  banifh'd  for  three  Years  j  le?.  pedihus 
but  that  was  for  only   thofe  of  a  high   and  honourable  ^oi. 
Rank:  But  thofe  that  were  Bafe  and  Ignoble,  fliould  be 
fcourged  and  fent  to  the  Gallies  or  Metal  Mines.  ^^^  ^<?.  A'- 

And    the  preventino-  of  Help    to   fuch     fhipwreckt  ^''^T'^'.'^'^'^' 
rerlons,  was    punifh  d    with  the   lame  Sufiering  as  a 

The  like  for  thofe  that  put  forth  any  treacherous  Lan- 
thorn  or  Light,  with  Intention  to  fubjed  others  to  Dan- 
ger or  Shipwreck,  thefc  were  punifhed  with  Death. 

And  though  no  Harm  happens,  yet  he  may  be  punifh- 
ed: Hence   it   is,  that  Fifhers  are  forbidden  to  fifh  with  ^^rJegAncend. 
Lights  in  the  Night,  for  fear  of  betraying  Sailers.  Teg.mpifc'cufr. 

III.  And  here  I* 
cannot  omit  the  great  and  pious  Care  that  his  Majefty  hath  had,  in  his  Diredions  a- 
oout  Light-Houfes  ar;d  Lanchcrns,  ^nd  other  fpecial  Sea-marks ;  but  more  efpecially  in 



270  SDt  WMtk.  Book  1 

his  ere6>i'ng  at  his  own  Priacely  Charge,  that  moft  F-xcellent    Lighi-Houfe  near  G  • 
fon   by   Tannouthy  which,  both  for  Height,  Curioiity  and  Form,  is  not  inferior  to 
not  excelling,  all,  or  raoft,  in  Chrillendom. 

III.  And  as  the  Emperor,  and  other  maritime  Kir- 
doms,  had  in  fome  fort  abrogated  and  repealed  that  cru. 
Law,  and  fubjedted  the  Violaters  to  Punilliment  for  th: 
Inhumanity  offered  to  fach  diftreffed  Perfons  ;  fo  our  Fa- 
mous  King  7^/<;^^r^,  returning  from  the  Holy  War,  in 
his  own  Experience  at  Sea,  became  fenfible  of  the  Mifcri- 
which  Merchants  and  Mariners  at  Sea  underv/ent,  their 
Lives  being  always  within  few  Inches,  often  within  a:i 
Hair's  Breadth   of  Death  ;  and    having  Confideradon'ot 
their  Calamities   and  Diflrefled  State  in  his  Voyage,  re- 
folved  to   revoke   that  Law,  and  at  Oleron  in  the  Bay  of 
Aquitain  fthen  part  of  his  Dominions,  as  Sovereign  Lad 
of  the  Ocean,    and  ail  thofe    Maritime   Kingdoms)  did 
there,  amongft  other  good   Marine  Laws,  declare,  iHifl/ 
if  any   Perfon   or  living  I'hitig  efcaped  out  of  any  inrick- 
ed  Ship  to  Land^  it  JJoould  not  be  Wreck  or  confifcaui  h 
him  or  his  SucccJJor^  as  it  was  before^  though  all  the  M::: 
efcaped  alive.     For  before  that,  both  in  England  and  in 
*  J^raaon,  hh.  *  f^oYmarJy\  the   ■\  Crown   was  entitled  to  fhipwrcck: 
Xcu^.uma      ^oods,  and  the  King  y^r^  G^w/i^^;;^  (indeed  accordii^  to 
Norman. c,\'],  the  Rhodian  Law)  became  Heir  unto  them,  v/hich other- 
wife  Jure  naturali  were  conceived  to  be  in  bonis  nulliuf, 
pertaining  to  no  Owner:  But  now  that  Valiant  and  Re- 
ligious Prince   refolved    no  longer  to  embrace  fo  cruel 
a  Prerogative,  by  the  dripping  the  difLreffed  Mariners  of 
thofe  Rags  of  their  Eftates,  which  the  Mercy  andModeilv 
of  the  Waves  and  Winds  had   left  tiiem  -,  and  therefore 
in  the  Month  of  O^ober  at  MeJTana^  in  the  prcfence  oi 
i?i?r5rBVj^^^«  ^"^^"y -^^'chbifhops,  and  Bifliops,  and  others,  he  then  tor 
in'^the  latter    ever  quitted  the  Royal  Claim  to   Wrecks,  which  after- 
part  of  his     wards  was  declared  and  publilhed  at  Oleron  in  his  own 
tiT'joan'    Territories ;  fo  that  if  any  Man  out  of  the  Ship  came 
jiromptlT'     alive  to  Hiore,  the  Property   of  the  fhipwreckt  Goods 
CJoron.Coll.      was  flill  preferved  to  the  Owner  :  Which   Royal  Con* 
fol.  1S87.        defcention    was  fo  enlarged   by   our  fucceeding  Kings 
That  if  a  Man.,  Dog^  or  Cat  efcapes  alive  out  of  the  Sb'ti^ 
neither  the  Ship  or  other  Fejfel^  nor  any  thing  therein  jhttJi 
he  adjudged  Vvreck,  but  the  Goods  fhall  be  faved  and .  ^ 


(Chap.  V.  ffifsBrccS*  271 

h  the  Sheriff,  Coroners,  or  the  King's  Bailiffs^  and  dc- 
Mrd  to  the  Inhabitants  of  the  Tozvn  where  the  Goods  are 
found',  fo  that  if  any^  within  a  Tear  and  a  D/ry,  fue  for  Wejlm.\,c,\, 
ihofe  Goods,  and  after  prove  that  they  were  his  at   the  time  3^-  *• 
:  fflifg  Shipwreck,  they  fljall  be  refloredto  him  without  delay  : 
K  ^i  if  not,  they  fhall  be  feized  by  the  f aid  Sheriffs  Coroners^  2  ////?.  166. 
^t  bailiffs  for  the  King^s  ufe  -,  and  fhall  be  delivered  to  the 
l^hnhitants  of  the  Town,  who  fhall  anfwer  before  the  Jufiices 
■J  the  Wreck  belonging  to   the  King  :  But  this  good  Law  ^^^  ^^^'       ' 
ftUnds  not  to  Pirates,  Robbers,  Sea  Rovers,  Turks,  or  other  ^°"* 
Estmies  to  the  Catholick  Faith. 
Where  the  Wreck  belongs  to  another,  he  fhall  have  it 
1  like  manner  •,  and    if  any  be  attainted  to  have   done 
oiherwife,  he  fhall  fafl^er  Imprifonment,  make  Fine  to 
the  ILin^,  and  yield  Damage  alfo. 

Ifa  Bailiff  do  it,  and  it  be  difallowed  by  his  Lord,  the 
Bailiff  fhall  anfwer  for  it  if  he  hath  wherewithal  -,  but  if 
not,  the  Lord  fhall  deliver  his  Bailiff's  Body  to  theKing. 
IV.  If  the  Ship  periflies  only,  and  the  Goods  are  fafe, 
in  that  Cafe  the  Goods  ought  to  pay  a  Proportion  of  a    ^^'  -]Z*  ^iL. 
fifth  or  tenth  Penny,  according  to  the   eafy  or  difficult  .q/ 
\  Winning  or  Saving  of  the  fliid  Goods.     Rich  Goods,  as 
Gold,  and  Silver,  and  Silk,  pay  lefs   than  Goods  of  great 
Weight  and  Cumber,  being  in  lefs  Danger,  unlefs  it  were 
a  Wreck  going  into  a  Port,  v/hich  the  Skipper  was  not 
bound  for,  there  e  contra,  then  the  Skipper  is  not  to  be 
Goods  may  be  retained  for  Payment  of  Salvage.  id.Raxm. 

But  if  the  Ship  and  Goods  perifli  in  the  wSea,  and  the  393. 
Owners  do  totally  forfake  her,  and  fo  fhe  becomes  a  meer 
Dmli^^  in  that  Cafe  the  firfl  Poffeffor  that  recovers  her» 
or  any  part  of  her  Lading,  gains  a  Property  :  And  this 
according  to  the  Laws  of  Nations,  as  is  that  given  for  lofi, 
"'i^hsreof  there  is  710  Hopes  of  Recovery^  like  a  Lamb  in  the 
"aws  of  a  Lion.  And  the  incomparable  Ulpian  compares 
^^^^zDereli^ion  to  a  Man  that  knows  his  own  Goods  to 
i^e  by  another  Man  detained,  and  makes  no  Claim  unto 
them  in  along  time  j  unlefs  fome  Caufe  do  manifeftly' 
appear,  feems  to  do  it  to  no  other  purpofc  but  to  fliew 
fhat  he  is  willing  to  renounce  them  -,  and  this  is  it  what 
Ulpian  elfewhere  intends,  where  he  faith,  that  a  Houfe 
poffefs*d  for  along  time  by  -another,  and  no  Claim  made, 


^72  SDf  mvu%  Book; 

nor  Rent  demanded  for  it,  feems  to  be  deferted  bv  • 
right  Owqer. 

To  eicaEi  Inta-eft  long  fmcc  due^  faith  the  good  Empcn. 
Antonius^  is  hardly  juft ;  for  the  not  demanding  it  infolo^t, 
a /pace,  makes  it  probable  that  thou  wert  'willin?  to  remit  - 
and  that  by  not  fo  much  as  demanding  it^  thy  purpofe  'Was  :■ 
make  thy  [elf  the  more  Beloved  and  Honoured^  and  th  B: 
the  more  Thankful. 

Now  that  Silence  fhould  be  of  fuch  a  force  as  to 
juftify  our  Prefumption  of  a  Dereli^iion^  two  things  arere 
quifite  5  Firfl:,  That  he  that  is  filent  knows  that  he  hath 
a  Right  J  for  him  that  knows  it  not,  Silence  canno: 
prejudice.  Secondly,  That  his  Silence  be  free  and  vo- 
luntary, and  not  occafioned  by  Fear,  or  any  other  fuch 
Caufe  ;  and  the  true  Realon  is,  that  it  is  hardly  pofliblc 
that  in  a  long  time  a  Man  fhould  not  by  fome  Means 
or  other  arrive  at  the  Knowled2:e  of  his  own  RjtJhr 
time '  daily  adminiftring  occaiions  to  the  difcovery  of 

But  becaufe  that  time,  which  exceecfs  the  Memory  of 
Man,  is  in  a  moral  Senfe  infinite,  therefore  if  Claim  be 
not  made   -with  a  reafonable  time  to  a  thing  out  of  P[)f. 

Grotiusjih.  2.  feflion,  it  is  a  fufficient  Prefumption  that  it  is  fcrfobr., 

<:«/•.  4.  §.  5,6.  unlefs  fome  very  Urong  Reafons  be  brought  to  the  con- 
trary ;  and  therefore  the  recovery  of  the  Plate  near  r'.. 
BahamaRocks^  loll  near  fifty  Years  before  by  thcSpnniar:., 
becam.e  mofl  apparently  a  Derelidt,  and  free  not  cn:y 
for  the  Undertakers  to  recover  and  pofTefs,  but  to  keep 

nlrt^ al.^'  '^^  a  Property  juftly  acquired  by  them,  as  well  by  th: 

2ny^nf2o\t?,j.  Laws  of  Nations,   as  the  Civil  Law. 

lyE.z.c.ii.  V.  The  King fhall  have  Wreck  of  the  Sea,  \Vhales,arJ 
great  Sturgeons  taken  in  the  Sea,  and  elfewhere  through- 
out the  whole  Realm,  except  in  Places  privileged  by 
the  King. 

Id  Raj-m.  Alfo  Wreck  may  be  claimed  by  Prefcription  :  and  r'  ^ 

^74-  Lord  High    Admiral    poflibly    may  have  it  by  Pre- 


LdRaym.  ^  ^^^^^  ^^  ^^^^j^  ^^  ^^^  Lord  High  Admiral  asap- 

^'  pertaining  to  his  Office,    will  not  pais  Wreck  belonging 

Sir  Henry  Con-  ^^  ^^^  King's  Mauor  by  Prefcription, 

jiable'^Cz^c,        VI.  By  the  Grant  of  Wreck  will  pafs  Flotfam,  JtW: 

Coke,  ^  pari.    ^^^  Lagan,  when  they  are  caft  upon  the  Landj  bat" 
>/.  107.  ^     '  ^  ^  they 

Chap.  V.  g>t  muc%  273 

they  are  not  caft  upon  the  Land,  the  Admiral  hath  Ju- 
rifdiclion,  and  not  the  Common  Lazv^  and  they  cannot  be 
faid  Wreck. 

JVreccum.  Maris ^  are  fuch  Gpods  only  as  are  call  and  5  Co.  106. /«, 
\A  upon  the  Land  by  the  Sea.  5  ^<''  '^o^-  ^» 

Floijamy  is  when  a  Ship  is  funk,  or  otherwife  perifhed, 
and  the  Goods  float  upon  the  Sea. 

Jetfam^  is  when  the  Ship  is  in  danger  to  be  funk,  and  -^^y* 
for  lightning  the  Ship  the  Goods  are  cail   intp  the  Sea, 
iiotwidiflanding  which  the  Ship  perifheth.  ^ 

Lagan  vel  Ligan^  is  when  the  Goods  being  heavy,  are  Ihid. 
caft  into  the  Sea  before  the  Ship  periihes,  which  by  the  Braaon,  Hk 
Prudence  of  the  Mafter  or  Mariners,  who  have  an  In-  3-  ^-  2. 
tent  to  fave  them  fo  funk,  as  that  they  may  come  at  them 
again  ;  in  order  to  which   they  fallen  a  Buoy  or  other 
light  Matter,  that  may  fignify  to  them  where  they  lie, 
if  Providence  fliould  bring  them  in  a  Condition  to  retake 
them ;  (sj  dicitur  Ligar  a  Uganda. 

The  King  fhall  have  Floifam.,  Jetfam  an/i  Lagan ^  when  r.  A^.  B.  ml 
the  Ship  perifheth,  or  when   the  Owners  of  the  Goods  46  ^.  3.  15. 
are  not  known  j    but  when    the  Ship   p^rifhes  not,    e  ^^'^'^^  Plane's 

^      ^  terezrtni  com- 

'^^^'^'  ^  ,  vtmiadefuc^ 

A  Man  may  have  Flotfam  and  Jetfam  by  the  King's  csjp.onihus  acq^ 
Grant-,  and  may  have  F/(?//^;?2  within   the  high  and  low  .^^^■-^^|--0^'?^-o«' 
Water-mark  by  Prefcription,  as   it  appears  by  thofe  of  Coh  ^.  fart, 
the  Weft-Countries,  v/ho  prefcribe  to  have  Wreck  in  the/'^-*°7- 
Sea  -,  fo  far  as  they  may  fee  a  Humher  Barrel.  J^  167'^^  ^  * 

VII.  If  the  Ship  be  ready  to  perifh,  and  all  the  Men  i^^^  g.  ^^  ^g 
therein,  for  Safeguard  of  their  Lives,  leave  the  Ship,  and  k^.  Rhcd.  de 
after  the  forfliken  Ship  pcriflies,  if  any  of  the  Men  be/'^'^*- 

faved  and  come  to  Land,  the  Goods  arc  not  loft. 

A  Ship  on  the  Sea  was  purfued  by  Enemies,  the  Men 
therein  for  Safeguard  of  their  Lives,  forfake  the  Ship, 
the  Enemies  take  the  Ship,  and  fpoils  her  of  her  Goods 
and  Tackle,  and  turn  her  to  Sea  \  by  ftrcfs  of  Weather  z,  R.  2.  pro. 
fteis  caft  on  Land,  v/here  it  happened  her  Men  arrived  1  'WilHeimolip^ 
It  was  rcfolved  by  all  the   judges  of  England,  that  th?  Y''^''  ^  ^^Z- 
ohip  was  no  Wreck,  nor  loft.  4,5   ^.  xi 

VIII.  If  Goods  are  caft  up  as  a  Wreck,  and  it  fiills  out  z>.  dsfuru 
they  be  ^o«i7  peritura.^  the  Sherift"  may  fell  them  within  /"/.  C^/«.  466, 
the  Year,  and  the  Sale  is  good  \    but  he  muft  account  to 

the  true  Ov/ncrs. 

S  Owners 

274  ^i  mvttfi.  BOOK^I], 

F.N.B.fol.        Owners  claiming  the  Wreck,  muft  make  their  Proof 
Yc    ^'  d  1h    ^y  ^^^^^  Marks  or  Cocquets,  by  the  Book  of  Cuftoms,  or 
ihatl^be  ac-  ^^  ^7  ^^^  Tcilimony  of  honcft  Men  ;  and  if  the  Wreck  be- 
counted  from  longs  to  the  King,  the  Party  may  fue  out  a  CommiiTionto 
the  Seizure,     j^ear  and  determine,  and  that  by  the  Oaths  of  twelve  Men ; 
^  C"^  '^^^    ^''  ^^^^  ^^  ^'^^  bring  his  Adion  at  Law,  and  make  out  his 
I  Keb.  657.     Pi'oo^  t>y  Verdi3i  ;  but  fuch  Adion  muft  be  brought  with- 
in the  Tear  and  Day. 
5  Co.  126.  h.       Note^  Jplotfam^  J^ff-f^^  and  Lagan,  are  Goods  on  or  in 
the  Sea,  and  belong  to  the  King,  who  by  Charter  hath 
o;ranted  them  to  the  Lord  Admiral. 
Lcfc  u^re-  IX.  If  Goods  were  wrecked  on  the   Shore,   and  the 

fo/^zd  Bat  Lord  having  Power,  takes  them,  he  fliall  not  pay  Cullom, 
iince  adjudo--  neither  by  the  Common  Law  nor  by  the  Statute  ♦,  for  at  the 
ed  in  C.  B.  Common  Law^  wrecked  Goods  could  not  be  charged  with 
"P°",.^^P^^'^j  Cuftom,  becaufe  at  the  Common  Law  all  V/reck  was  wholly 
2xlTEdmund\  ^^  King's,  and  he  could  not  have  a  fmall  Duty  of  Cu- 
JBuryh\Suffolk.  ftom  out  of  that  which  was  all  his  own  ;  and  by  Wejlm. 
Sbepknrdv.  i.  wlicrc  wrccked  Goods  belonged  more  to  another  than 
Gofnold,  UilL  fQ  j-v,g  King,  he  (hall  have  it  in  like  manner,  that  is,  as 

Vaughan,  fol.  Now  Goods  that  are  chargeable  with  Cuftom,.accord- 
159.  ing  to  the  A(5l  of  Tunnage  and  Poundage^  muft  have  thefe 

izCar.  z,c.^,       i.  They  muft  be  Goods  which  ftialj  come  or  be  brought 

into  the  Ports  or  Places  of  the  Kingdom. 

2.  They  miuft  come  or  be  brought  into  fuch  Ports  ox 
Places,  as  Merchandize  that  is  for  fale,  and  to  that  end ; 
for  there  can  be  no  other  Conception  of  Goods  broughtas 
Merchandize,  v^ 

3.  They  muft  come  and  be  brought  as  Merchaniip^ 
and  for  fale  by  the  King's  natural  born  Subjeds,  or  i)y 
Strangers  and  Aliens,  as  diftinguifned  from  the  natural 

4.  The  Duty  payable  to  the  King,  is  to  be  meafured 
by  the  Quality  of  him  that  imports  the  Commodity ;  that 
is,  if  the  Importer  be  a  natural  Subject,  he  pays  kfs  to 
the  King  ;  and  if  an  Alien,  more. 

5.  All  thofe  Goods  charged  with  the  Duty  by  the  Sta- 
tute, fo  to  come,  or  be  brought  into  Ports  or  Places  of 
the  Kingdom,  are  to  be  foreign,  as  of  the  Growth  or 

France,  the  Levant,  Spain^  Portugal,  Germany,  ^c. 


chak  V.  ofi^rccTn  275 

Whence  it  follows,  i.  That  Goods  of  foreign  Growth, 
and  whidi  by  their  kind  are  to  pay  Duty,  if  they  fhall 
come  or  be  brought  into  the  Ports  or  Places  of  the  King- 
dom, neither  by  the  King's  natural  born  Subjeds,  nor  by 
Aliens,  they  are  not  chargeabk  with  the  Duties  menti- 
oned in  the  A61. 

2.  If  they  are  not  brought  into  the  Ports  and  Places  of 
the  Kingdom  as  Merchandize,  'viz.  for  Sale,  they  are  not 
charoeable  with  the  Duty  ;  but  Wines  or  other  Goods 
coming  or  brought  into  the  Realm  as  JVreck^  are  neither 
brought  into  the  Kingdom  by  any  of  the  King's  Natural 
torn  Stihje5fs^  nor  by  any  Stningers^  but  by  the  Wind  and 
Sea  ;  for  fuch  Goods  want  a  Proprietor  until  the  Law- 
appoints  one. 

3.  Wrecked  Goods  are  not  brought  into  the  Kingdom, 
being  caft  on  Shore,  as  Merthandize,  viz.  For  Sale  ;  but 
are  as  all  other  the  native  Goods  of  the  Kingdom,  indif- 
ferent in  themfelvcs,  for  Sale  or  other  ufe  at  the  Pleafure 
of  the  Proprietor. 

4.  All  Goods  foreign  or  domedick  are,  in  their  Nature, 
capable  to  be  Merchandize,  that  is,  to  be  fold  ;  but  it 
follows  not  thence,  that  wherefoever  they  are  broug^ht 
into  the  Kingdom,  they  are  brought  as  Merchandize, 
and  to  be  fold,  and  fhouki  pay  Cun:om  ;  for  they  are 
transferred  from  Place  to  Place,  more  for  other  ufes  than 
for  Sale. 

5.  All  Goods  charged  with  the  Duty  of  the  Ad:,  muft 
be  propriated  by  a  Merchant  Natural  born^  or  Merchant 
Alien,  and  the  greater  or  lefs  Duty  is  to  be  paid,  as  the 
Proprietor  is  an  Alien  or  Native  Merchant;  but  wrecked 
Goods  are  not  the  Goods  of  any  Merchant  Natural  horn., 
Alien  or  Denizen.,  whereby  the  Duty  payable  fhould  be 
either  demanded,  diftinguiflied,-  or  paid  :  Therefore  a 
Duty  impoflible  to  be  known,  can  be  no  Duty  ;  for  Ci- 
villy v^hat  cannot  be  known  to  be.,  is  as  that  zvbich  is  not. 

'  6.  All  Goods  fubjed  to  the  Duty  of  Tunnage  and  Poun- 
clage,  may  be  forfeited  by  the  Difobediencc  and  Mi  (be- 
haviour of  the  Merchant-Proprietor,  or  thofe  tnilled  by 
him.  As  unjhipping  before  Payment.,  or  lawfully  iendring  or 
'o^Yeeingfcr.,  &c.  But  wrecked  Goods  cannot  be  import- 
ed into  any  Creek  or  Place  of  the  Realm  by  way  of  Mer- 

S  2  , chan^ 

276  ©f  mttCU.  Book  II. 

chandize,  and  unfhipped  to  be  laid  on  Land  •,  for  if  fo 
imported  and  unfliipped  to  be  laid  on  Land,  it  is  no 
Wreck,  and  therefore  are  not  Goods  forfeitable  by  the 
Mifbehaviour  of  any  within  the  A6t  -,  and  confequendy 
not  Goods  intended  to  be  charged  with  the  Duties  by  the 

Goods  drowned  or  lofl:  in  pafTmg  a  Ferry,  a  great  Ri* 
ver,  or  an  Arm  of  the  Sea,  are  not  to  be  faid  to  be  export- 
ed, though  they  be  carried  to  Sea  •,  but  Goods  exported 
are  fuch  as  are  conveyed  to  Sea  in  Ships  or  other  Naval 
Carriages  of  Man's  Artifice  ;  and  by  like  Reafon,  Goods 
imported  muft  not  be  Goods  imported  by  the  Wind, 
Water,  or  fuch  inanimate  Means,  but  in  Ships,  VefTels, 
and  other  Conveyances  ufed  by  reafonable  Agents^  fe 
Merchants,  Mariners,  Sailors,  &c.  Whence  it  may  be 
concluded,  that  Goods  or  Merchandize  imported  withia 
the  Meaning  of  the  Acl,  can  only  be  fudh  as  are  import- 
ed with  Deliberation,  and  by  reafonable  Agents^  not  ca- 
fually  and  without  Reafon  ;  and  therefore  wrecked 
Goods  are  no  Goods  imported  within  the  Intention  of 
the  Adl,  and  confequently  not  to  anfwer  the  King's 
Duties  ;  for  Goods,  as  Goods,  cannot  Offend,  Forfeit, 
Unlade,  pay  Duties,  or  the  like,  but  Men  whofe  Goods 
they  are  :  And  wrecked  Goods  have  no  Owners  to  do 
thofe  Offices,  when  the  A6t  requires  they  fhould  be  done; 
therefore  the  A61  intended  not  to  charge  the  Duty  upon 
fuch  Goods. 

Per  Bolt.,  C.  J.  That  Wreck  ihall  not  pay  Cuftom, 
has  never  been  made  a  Doubt  fmce  the  Cafe  in  Vaughan^ 
159.  of  Shephard  i'.  GofnoU,  L.  Raym.  o,"^^.    The  fame 
h/Raym.^oi,  Point  (including  Flotfajn)  refolved  by  both  Courts,  viz, 
5'^2.      •        c^  B.  and  then  B,  R.  on  Error  brought. 
The  very  The  Admirals  of  England^    ut  magnus  Ad^nir alius  An- 

Words  of  the  ^/z>,  Hibemi^y  Walli<£^  ac  Dominiorum  Cs?  Infulariim  earun- 
L.  Ho=ivard'$  2em^  Villa  Califice  iS  Merchiarmn  ejufdem^  necnon  Gafconi^t 
E/:z.  in  Rot  Aqultanla.,  elajfium  i^  Marium  dii'iorum  Regnorum  Jngli^ 
Mmir.m.  10.  p'^fe^lus  gensralis^  &'c,  which  are  the  words  of  their  Fa- 
tents  ufed  at  this  day,  do  claim  all  Wrecks  arifing  from 
any  of  thofe  Places,  by  virtue  of  their  Grants. 

And  yet  in  the  like  Cafe,  in  all  Circum fiances,  be- 
tween P^w^r  and  SivTVilliam  PortmaUy  HilL  6,  PFilHam 
Com,  B,  Rot,  143 1. where  the  Judge^s,  and  more  particu- 

C«AP.  V.  SDf  mtttfi,  277 

larJy  Juftice  Trely^  ieemed  to  be  of  Opinion,  that  Goods 
wrecked,  or  FJotfam,  fhould  pay  Cuftom. 

X.  King  Edward  the  Second,  in  the  firfl:  Year  of  his  i  E.  2.  m.  6. 
Reign,  by  his  Charter,   granted  the  Callle  of  Carishrook^  »«-^'  6. 
with  all  the  Lands  and  Tenements  in  the  IJle  of  Wight^ 
formerly  belonging  to  Ifahella  Fortihus^  Countefs  of  AU 
hemarle^  to  his  great  Favourite  Peter  de  Gavefton^    and 
Margaret  his  Wife,  and  the  Heirs  of  their  two  Bodies 
begotten  (together  with  fundry  other  Caftles  and  Lands) 
and  commanded  Nicholas  de  Bofco  to  put  him  into  actual 
Pofleflion ;  and  like  wife  commanded  Robert  de  Sanfon^ 
Keeper  of  the  Foreft  of  Parkhurft  in  that  Ifle,  to  be  In- 
tendent  to  them  for  the  Farm  he  had  granted  him  for 
Life,  for  the  Cuftody  thereof,   which  being  afterwards 
foon  refeized  into   the   King's  Hands,  he  granted   this 
Caftle  with  all  its  Services,  and  all  his  Lands  in  that  Ifle» 
to  Edward  his  Son  and  his  Heirs  Kings  of  England^   and  Pat.  20.  E.  2I 
laftenvards,  for  the  afcertaining  what  did  of  Right  belong  ^-  ^i^'/'^^^j 
to  the  fame  Caftle,  an  Inquifition  went  out  by  which  it  w  ^'^f^[ 
was  found,  inter  alia,   qd^  wrechrm   Maris  pertinens  ad 
di^um  Cajlrum  valet  per  Ann.  4  s. 

So  that,  by  the  general  Patent  of  the  Admiral,  will An: 
not  pafs  the  Wreck  of  this  Ifie,  without  fpecial  Words  47-^-3'«-32. 
granted  in  the  Patent. 

iVi?/^,  If  the  Wreck  happened,  or  was  occafioned  by  7:^^.3. §.i./>. 
reafon  of  any  Fault  or  Negligence  in  the  Mailer  or  Ma-  l^ant.  caup.  St 
riners,  the  Mailer  muft  make  good  the  Lofs  •,  but  if  the  ^'f^'J^j^^^'^f^' 
fame  was  occafioned  by  the  A6t  of  God,  to  avoid  an  Ene-  j  26.  §.  6* 
my  or  Pirate,  and  the  like,  there  he  fliall  be  excufed.         d.  mand. 

^da  vis  ma- 
jor  provideniiam  ^'  indujlriarn  humanamfuperati  niji  culpa  cfifum  praceprf^i. 


(278  ) 


CHAP.      VI.    ■ 

I.  Of  Goodi  ard  MerchandixCy  ivhen 
Juhjid  to  be  <afi  G<ver-hQard. 

II.  Of  the  Account  rendrtd  of  fuch 
ejcHed  Goods ^  and  by  nvhom. 

III.  Of  the  antient  Laivs  of  Eng- 
land, in  reftrcnce  to  juch  Ejci!:!- 

IV.  What  Goods  mnfl  corns  Into  the 
Average,  and  ^ivhat  are  extfnpt. 
'^ihe  Defription  ^Average. 

V.  V;e  Mafier  difchargcd  by  fuch 
ASiSf  by  the  Common  Lavj. 

VI.  The  Shifts  Gear  or  Apparel^ 
nvhether 'within  the  Average. 

VI I.  'The  rendue  of  the  Goods  nvhere 
tacit  I-/  ohlized  to  avfvjcr  the  Ave- 





VII i.  Of  Goods  remajni7?g  r,n  f:Kt" 
board,fpo^lcd  by  rectjoii  of  toe  ejtdl- 
ina  of  others,  ^ixh&re  fu'^]cfl  to  the 

IX .  IVhire  Ship  and  Lading  are  both 
made  liable  to  the  Average, 

X.  Of  Misfortunes  not  fuhject  to  aM 
Average.  ..j 

X I .  Where  the  remmnder  of  the  doocd 
are  exempted  from  the  Aver?w, 
and  the   Damage  of   the 
Goods  falls  on  the  Mafier. 

X i  I .  Damage  to  th£  Ship^  niohereiii 
Lading  contribules,  and  the  JIom. 
dard  Kate  in  Contributions. 

X  U 1 .  7he  Majltr  becomes  a  Captive 

for  the    Redemi>tion  of  Ship  ani 

Ladings  lukere  liable  to  the  Ay& 

rage,   and  nx)here  difcharged.  y^^ 

XIV.  What  Goods  are  fuhjed  tarn 

XV.  Contribution  for  Pilotage,  taiA 
ijohere    the    remaining   Goods,  tuft 

fnhjet^  to  Avera^^e.  ,• 

X  V'  1.    R ules  general  for  fettling  tf>e 

Average.  ' 

XVII.  Three  Sorts  of  G-jods  taken 

at  Sea,  \ 

Leg.Rhod,  de  I.  O  K  I  P  S  being  freighted  and  at  Sea,  are  often  fubt 
Jaci,        .  ^    \q^  j-q  Storrr.s  and  orher  Accidents,  in  which,  b^ 

the  antient  Laws  and  Cuftcms  of  the  Sea,  in  extrerne  Ne^ 
Braaonjih.z,  ceffi'.)\  the  Goods ^  Wares ^  Guns.,  or  whatfoever  elfe  fhall  be 
foL^\,h,n.i.  thought//,  may  in  fuch  Extremity  be  flung  over-board  ; 
but  then  the  Mailer  ought  to  confult  with  his  Mariners, 
who  if  they  confent  not,  and  yet  the  Storm  and  Dan- 
ger continues  -,  the  Mailer  may  command  notwithftand- 
ing,  the  calling  over-board  what  he  fliall  judge  moft 
fitcing  for  the  common  Safety  of  the  red.  So  likewife 
Goods  coming  from  infedled  Towns  or  Places  may  be 
vcr-board  \    and  if  -an  Adion  be  brought  at  Coyn- 


Q  ©f  ^fterages  ana  €ontvibutiom.        ^yg 

jiwn  Law^  the  Defendant  may  juftify  the  fame  by  plead-  49^.3/5/.  15. 
ino-  the  fpecial  Matter. 

If  there  be  a  Super-Cargo^  a  Rcquefl  ought  to  be  made  Leg.  Oieron, 
to  him  to  begin  firil  ;    but  if  he  refufes,  the  Mariners  ^^P-  8- 
may  proceed. 

II.  If  the  Ship  fo  fortunes  as  to  out- weather  the  Storm,  Le?  ConjJat. 
and  in  Safety  arrives  at  her  Port  of  Difcharge,  the  Mailer,  M  Mere. 
and  mofl  of  the  Crew,   mull  fwear  that  the  Goods  were 

cad  over  for  no  other  Caufe  but  purely  for  the  Safely  of  L&g.Wifcitvf, 
the  Ship  and  Lading,     The  Cuitom  of  clearing  of  that  ^^rt.  38,  39. 
Point,  varies  according  to  the  ftveral  Countries  or  Places 
they  arrive  at. 

Where  Goods  are  laden  above  the  Overlopc^  or  for- 
bidden Goods  be  tranfported  ;  if  fuch  Goods  happ^e'n 
to  be  the  Caufe  of  any  Danger  or  Damage,  the  Mafter 
ihall  bear  the  Lofs  ;  alfo  he  may  be  profecuted  Crimi- 

III.  King  William  the  Conqueror^  and  Henry  the  Firfi^ 
made  and  ratified  this  Law  concerning  Goods  cafl  over-  ^^-i-^-Q^* 

ijiTv/r'  .  o  -T-*  c     ^  '     de  pa  fits  ad  le- 

board  by  Marmers  m  a  Storm,  m  Imitation  01  the  anti-  ^JfiRhodiam, 
ent  Rhodian  Lazv^  De  ja5f. 

Si  ergo  jecero  res  tuas  de  Navi  ch  metnm  mortis^    de  hoc  Se/den  ad 
W*  potes  me  implicit  are  ^  nam  licet  alteri  'daninurd  infer  re  ^f'^^''i^""^'r. 
mmemn  mortis  quanao  penculum  evader e  non  potejt.     ^^  igaium  /.i8^, 
fide  hoc  7ne  mefces^  qa^  ob  me  turn  mortis  nil  fecijje  de  comef  ihelockde 
pricrari.     Et  ea  qiLe  in  navi  rejtant  dividantur  in  communi  Pfif-  Anglo- 
kourJum  cat  alia.     ^  fi  aids  jecerit  cat  alia    extra   navim  7T^  ^fg^o^^^* 

1         -  •-«  ■'.         ^         n-.       .  f'^t.   167. 

q^iianao  neccjjitas  non  exegerit^  ea  rejtttuat.  ''         ' 

IV.  The  Ship  arriving  in  fafety,  the  remainder  muil 

come   into  the   Average^    not  only  thofe   Goods   which  ^^<?- ^- ^  2. 
payi  Freight,  but  all  thofe  that  have  obtained  Safety  and  ''^%' q^J^^ 
J^R-fcrvation  by  fuch  Ejeclion  -,  even  Money,  Jewels  an4       '^ 
Clothes,  and  fuch  like,  are  not  exempted. 

-But  thofe  things  v^hich  are  borne  upon  a  Man's  Body, 
Vicluals,  and  thedike,  put  on  Ship-board  to  be  fpent,  are 
totally  excluded  from  the  Contributiqn. 

.  The  Mafter  ought -to  be  careful,  that  only  thofe  things  l^Z-^^^fiicenj, 
oU\it  leaf.  Value  and  greatefi  Weight  be  ilung  over-board.   ^'^'  ''''*  ^'• 
ivixi  the  rating  of  Goods  by  way  of  Contribution,  this  Johames  La-  obferved  :    If  they  chance  to  be  caft  over-board  "''"'''  ^2. 
before  half  the  Voyage   be  performed,  then  they  are  to  ^  g_  'Ja'^ 
be  efteemed  at  the  Price  they  cod  j    if  after,  then  at  the  tyihutk 

S  4  Pi- ice 



28o         3©f  aterasciS  ana  Contrfbuttong*  Book  h.  jc 

Price^as  the  reft,  or  the  like,  (hall  be  fold  at  the  Place  of 
Difcharge.  ;:Jc 

The  Ferfon  (whofe  Goods  have  been  cad)  is  to  be" 
careful  to  have  the  fame  eftimated  before  the  Ship  do  dif;. 
charge,  wherein  the  Maft'er  ought  to  be  Afiiftant. 

Average,  in  the  Merchants  Law,  is  ufed  or  taken  for 
a  certain  Contribution  that  Meichants  and  others  do 
proportionably  make  towards  their  LoiTes  who  have  their 
Goods  call  into  the  Sea  tor  the  Safeguard  of  the  Ship;, 
or  of  the  Goods  and  Lives  of  them  in  the  Ship,  in  the 
tinne  of  TenipeR  •,  and  this  Contribution  feemstobefo 
called,  becaule  it  is  proportioned  after  the  Rate  of  every 
Man's  Average  or  Goods  carried.  It  is  derived  frora/the 
"Word  Averia^  Cattle,  ^r^^r 

2  Ro/Ie'i'Rer.       Goods  are  ill ipp'd  in  Eno-Jand.,  and  a  Tempeft  arifetlv  I 
498.  Caps'v,   the  Pairenp;ers,  for  fivins;  their  Lives,  caft  them  over-! 
umer.  board,  and  another  Ev.glijh  Ship  takes  them,  the  pwiv-! 

ers  bring  Ircvcr^    it  lies,    becaufe    delivered  upon  the 
120.^^63.  It  is  lawful  for  Palfcngcrs  to  caft  Goods  over-board 

2  Biiljlr.  280.  Qi^i  of  a  Ferry-boar,  in  Cafe  of  a  Tempeft,  for  Prefer 
vation  of  their  Lives  :  So  if  the  Ferryman  furcharge  the 
Boat  with  Goods,  the  Owners  of  the.  Goods  fhall  have 
their  Remedy  againft  the  Ferryman  in  this  Cafe  of  a  Sur- 
charge, but  not  in  the  other  Cafe.  ..  .1  '• 

V.  As  this  Lav/  doth  take  care  that  this  common  Can 
t  Bulp.  280.  lamity  fliould  be  borne  by  all  the  Parties  intereffed  byii 
Bird'v.Afioot.  aeneral  Contribution,  fo  the  Cowmen  Law  takes  noticKi 
MLone^^.      Qf  tj-je  Misfortune,    and   makes  Provifion'to  indemnifyn 

the  Mafter  ;  and  .therefore  if  the  Party,  owner  of  fuch 
ejecled  Goods,  fnail  bring  an  Action  againft  the  Mafter 
.or  Owners  of  the  Veffcl,  the  Defendant  may  plead  the 
fpecial  Matter,  and  the  fame  fiiall  bar  the  Plaintiff.       :  .^ 

VI.  But  if  the  Ship's  Gear  or  Apparel  be  loft  by  Storm, 
leg.  \.ff.  de  the  fame  is  not  within  the  Average^  but  is  accounted  like 
ixercit.uaion.  unto  a  Workman  breaking  or  fpoiling  his  Tools  ;  except 
t.amijTcel^  in  the  avoiding  of  a  Danger,  as  the  flinging  the  M4 
Ohron.           over-board,  or  the  flipping  the  Tov:-Anchor  or  Boat, 

Goods  brought  fecretly  in  the  Ship  againft  the  Mailer 
or  Purfer 's  Knowledge,  if  cjeded,  no  Contribution  is  to 
be  had. 

VII.  As 

J-VII.  As  the  Common  Law  looks  upon  the  Goods  and  Leg.  i.  ^^/. 
Car^^o  as  a  Pawn  or  Pledge  for  the  Freight,  fo  the  Marine  ji^^  exempt. 
X/j^  looks  upon  them  likewife  as  a  Security  for  the  an-  foj./g^  J/"^ 
{^^{\r\p  the  Average  iind  Contribution.,  and  that  the  Mafter  cond.  inde. 
ought  not  to  deliver  the  Goods  till  the  Contribution  is 
feccfed,  the  fame  being  tacitly  obliged  "for  the  one  as  well 
as  the  other.     Ad  Leg.  Rhod.  l.  2.   6"/  non  confervatis, 

VIM.  If  through  the  rifling  of  the  Ship,  or  the  calling  leg.  Na^is  4. 
orunlightning  the  Sliip,  any  of  the  remaining  Goods  are  ad  Leg.  Rhod, 
ipoiled,  either  with  wet  or  otherwife,  the  fame  mud  come  ^ndrm«/s 
into  the  Contribution  for  fo  much  as  they   are  made  r^i^^^J^^^^^ 

IX.  If  it  fiills  out  that  a  Ship  entring  into  a  Port  or  Leg:g.  §.3, 
Channel,  cannot  make  way,  and  there  be  a  lightning  or  adexUb, 
difburdening  of  the  Ship,  then  the  Contribution  falls  two 

Parts  to  the  Lading,  and  one  third  to  the  Ship,  except 
the  Ship  furpafs  in  value  the  Lading,  or  that  there  is  fome 
bad  Quality  in  the  Ship  itfelf. 

But  to  prevent  that  ambiguous  Queflion,  if  the  Party 
covenants  that  the  Goods  ihall  be  delivered  at  the  Port  L.  i.  verf. 
covenanted  and  appointed,  then  Condition  makes  Law.      quod  con^enie 

So  for  the  Ptloih  Fee  and  rifing  of  the  Ship  off  Ground',  ^^^°-^' 
when  therfe  is  no  Fault  in  the  Mailer. 

X.  If  two  Ships  happen  to  encounter  and  crofs  each  leg,  quemad- 
other,  and  the  Crew  fwear  their  Innocency,    Contribution  modumpa- 
muft  be  made  by  a  juft  Equality  •,  but  if  one  perifhes,  as  ^^^'   ^^^^'^^^^ 
there  can  be  no  Proportion  of  the  Lofs,  fo  no  Contribu-  ^■^^^'    ^"^' 
tion.    The  reafon  given  is,   for  that  otherwife  a  Skipper 

might  on  purpofe  fet  an  old   weak  Ship  againfl  a  flrong 
Ship,  and  by  that  Means  hedge  himfelf  into  a  Contribu- 
tion and  Recompence.     However,  this  bars  not  the  Own-  Fod.  leg.  18. 
ers  from  bringing  their  Adion  againfl  the  negligent  Ma-  H.b.num.i^z. 
iler,  by  which  Means  he  may  recoop  himfelf  in  Damage,  ll^-^y'^.  '^^  ,: 
It  It  happens   at  Sea,  the   Action  by  the  Civu  Lazu  is  jompkinsy  Noy 
called  Legis  Aquil^.  Rep.  148. 

If  fuch  a  Misfortune  happens  in  the  Night  at  Sea,  the 
Party,  if  he  will  compleatly  arm  himfelf  for  his  recovery, 
ought  to  prove,    that   he  made  out  Light  or  Fire,  or 
Otherways  gave  notice  by  crying  cvr  calling  out. 
*XI.  If  it  falls  out  in  the  Ship  or  VcfTel,  by  the  indifcreet  luj}  Semus. 
Stowing  or  Lading  thereof  above  the  Bir^h-mark,  that  §•  2'j.t5  Si 
fuch  EjcElion  happened,  in  that  Cafe  it  has  feeen  uled  by  ^3-  ^f  h- 

the  ^^'''^- 


282         SDf  mtva^td  anb  €cntnbtrtion?f.  Book  m 

the  Marine  Laws  no  Contribution  to  be  made,  butS 
tisfadi9n  is   to  be  anfvvered  by  the   Ship,  Mafter  of 

If  Salt  or  Corn  be  laid  loofe,    or  in  an  heap  by  diven 

Perlbns  inoneShip,  without  Diftindlion,  and  the  Maftc 

delivers  to  any  of  them  their  due  Share  or  Quantity  ;  bu: 

before  the  reft  receive  their  Share  or  Meafure,  the-re- 

rnainirg  Salt  or  Corn  wafhes  or  lofes,  thofe  that  had  the 

good  Fortune  to  have  their  Shares,  fhall  enjoy  it  without 

any  Contribution  to  the  other  Partners.  Lex  Mercat.  \\q. 

Ad  leg,  RhoJ.       XII.  if  to  avoid  the  Danger  of  a  Storm,  the  Mafter  cuts 

/eg.  2.  §.  Si    down  the  Mafts  and  Sails,  and  they  falling  into  the  Sea, 

Confer-vaiis.     ^iXQ  loft,  this  Damage  is  to  be  made  good  by  Ship  and 

Lading  fro  rata :  Otherwife  if  the  Cafe  happens  by  Storm 

or  other  Cafualties. 

No  Contribution  is  to  be  paid  in  Cafe  one  Ship  ftrike 
^gainft  another  whereby  Damage  happens,  but  full  Satif- 
fadlion  is  to  be  anfwered  the  Merchant  in  Cafe  of  Fault 
or  Mifcarriage  in  either  ;  or  an  equal  Divifion  of  the  Da- 
mage, in  Cafe  it  happens  by  a  Cafualty^  as  above. 
F.d^leg.Rhod.  If  a  Lighter  or  Skiffs  or  the  Ship's  Boat  into  which  part 
/W.  natis       Qf  tj^e  Cargo  is  unladen  for  the  lightning  of  the  Ship,  pe- 

Zhad^^'""   ^^^'  ^^^  ^^^  ^^'P  ^^  preferved,  in  that  Cafe  Contribution 
jLhodUejaau.  ^s  to  be  made  ^  but  if  the  Ship  be  call  away,  and  tlie 
Moor  297.      Lighter,  Boat,  or  Skiff  be  preferved,  there  no  Contribu- 
tion or  Average  is  to  be  had,  it  being  a  Rule,  No  Con- 
iribtition  hut  where  the  Ship  arrives  in  Safety. 
Leg.  Rbdd.  de       XIII.  If  a  Ship  happens  to  be  taken,  and  the  Mafter, 
jaait,  1. 2.  Si  to  redeem  the  Ship  and  Lading  out  of  the  Enemies  or  Pi- 
mvis  a  ?ira-  ^^^^^^  Hands,  promifes  them  a  certain  Sum  gf  Money^  for 
Performance  whereof  himfelf  becomes  a  Pledge  or  Op- 
tive  in  the  Cufiody  of  the  Captor;  in  this  Cafe,  he  is  to 
be  redeemed  at  the  Cofts  and  Charges  of  the  Ship  and 
Lading,  and  Money,   if  there   be  any  in  her,  are  con- 
tributary  according  to  each  Man's  Intereft  for  his  Ran- 
lUof^,  fol  So  where  a  Pirate  takes  part  of  the  Goods  to  fpare  the 

/JJwt?"  ''^^'  Contribution  muft  be  paid. 

la/il^on.  ^'^^^  i^  ^  Pirate  takes  by  Violence  part  of  the  Goods,  liic 

reft  are  not  fubjed  to  Average,  unlefs  the  Merchant  hath 

made  an  expreJs  Agreement  to  pay  it  after  the  Ship  is 




Chap.  VI.  S)i  ^zvaats  mti  Contt^iiittttonj?.        zH 

I    Mt  if  part  of  the  Goods  are  taken  by  an  Enemy,  or  ^rot.  de  in- 
by  Letters  of  Mart  and  Reprizal,  e  contra.  trodjur.HolL 

So  likewife  in  Srorm,  if  the  fame  is  done  for  Preferva-  ?aL«.%^- 
tion  of  the  Remainder.         •  ^  Naut.  in  the 

He  may  hypothecate  the  Ship  for  his  own  Redemp-  end  of  chap, 
tion.    L.  i^'^^j/^^Ws  Reports  2  2.  ^^' 

fh  Ship  was  taken  by  a  French  Privateer,  and  the  Mafter  Hill.  7  Annar, 
of  her  ranfom'd  her  for    1800/.    (the  Mailer  having  ^ '^^  Chancery, 
Share  in  the  Ship)    the  Mate  was   carried  into  France^  Winur, 
a$)af  Hoftage  for  this  Money.     \jdxA  Chancellor  {-^x^^  the 
Ranfom  Money  mud  be  raifed  out  of  the  firil  Profits, 
DOt^ithflanding  any  former  Mortgage  of  the  Ship;  for 
if  there  was  a  precedent  Mortgage,    what  would  have  be- 
come of  the  Security  if  the  Ship  had  not  been  redeemicd  : 
After  the  Ship  was  redeemed  fiie  performiCd  her  intended 
Voyage,   and   the  Freight-Money  earned  after  her  Re- 
demption was  the  firfl  Profits  arifing,  and  cut  of  thefe. 
the  Ranfom-Money  is  to  be  fatisfied.     This  was  upon 
Motion.     The  Lord  Chancellor  faid,  the  Infurers  always 
paid  part  of  the  Ranfom-Money. 

;XIV.  In  Ejedlmient  the  Mailer  or  Purfer  of  the  Ship 
flmjl  contribute  for  the  Prefervation^of  the  Ship,  and  alfo 
thePalfengers  for  fuch  Wares  as  they  have  in  the  Ship,  be 
it  Pearls,  precious  ^tones,  and  fuch  like  •,  and  Paffengers 
tiiar  have  no  Wares  or  Goods  in  the  Ship,  yet  in  regard 
they  are  a  burden  ta  the  Ship,  Eilimate  is  to  be  made  of 
his  and  their  Apparel,  Rings,  and  Jewels,  towards  a 
Contribution  of  the  Lofs  ;  and  generally  all  things  in  the 
Ship,  except  the  Victualling  and  Provifions  of  the  Ship, 
and  the  Bodies  of  Men  (unlcfs  Servants)  mull  bear  a 
proportionable  Share  in  the  Contribution. 

The  Eftimate  being  rrade  of  the  Goods  lofl  and  faved,  Pedeusadkg, 
the  Price  is  to  be  fet  down,  not  for  how  much  they  were  ^^-'^^'  de  jaP,, 
bought,  but  how  much  they  might  be  fold  for  at  the  time-^^^g*9^>  i97» 
when  the  Eje(5l men t  was  made  ;  and  if  any  thing  be  flung' 
into  the  Sea,    and  endamiaged,  and  afterwards  is  reco- 
vered again,  yet  Contribution  is  to  be  made  only  for  the 


XV.  Contribution  is  to  be  paid  for  the  Pilot's  Fee  that 
liath  brought  a  Ship  into  a  Port  or  Haven  ibr  her  Safe- 
guard, (it  being  not  the  Place  Ihe  was  defigncd  for)  fo 


284  Df  ^btva^es  ana  €cnttiimtions.  BookiI 

to  raife  her  off  the  Ground  when  there  is  no  Fault  in  ti, 

Grofitis  in-  If  a  Maftcr  of  a  Ship  lets  out  his  Ship  to  freight, 

ifod.Jur.  HoIL  then  receives  his  .Compliment,  and  afterwards  takes  „ 
^^d  pl^keus  ^^°^^  without  leave  of  the  Freighters,  and  a  Storm 
Commenta-  arifes  at  Sea,  and  part  of  the  Freighters  Goods  are  car 
ries  on  the  over-board,  the  remaining  Goods  are  not  fubjedl  to  tht 
Laws  of  Average,  but  the  Mafter  muft  make  good  the  Lof^out 
Modes,  foh     of  his  own  Purfe.  0 

The  Goods  which  are  loft  are  to  be  valued,  an(tthf 

Goods  faved  are  to  be  eftimated,  which  being  known,  a 

proportionable  Value  is  to  be  contributed  by  the  (^dj 

faved,  towards  Reparation  of  the  Goods  eje5ied^  or  cad 


In  which,  regard  is  always  had,  not  to  what  might  be 

locznus,  lih.    got  by  the  Goods  loft,  but  what  the  intrinfick  Damage  is 

2.  cap.  8,  9,   j-^y  ^i^g  Yoist  of  the  fame  ;  the  which  are  not  to  be  di- 

*      *         mated  what  they  might  have  been  fold  for,  as  what  they 

coft,  or  were  bought  for. 
The  Cuftom        XVI.  But  now  the  Cuftom  is  general,  the  Goods  favec 
of  Places  va-    ^^^  Jq(^  ^^j.^  eftimated  according  as  the  Goods  faved  were 
X^of^efli-^'    ^^^^  ^'^^'  Freight,   and  other  necelTary  Charges,   tog 
mating;  the  firft  dedu6led. 
which  is  done      Jf  there  were  Plate,  Jewels,  or  the  like,  in  a  Trunk, 

indifferently  "^h^te  be  a  Super-Cargo^  he  ought  to  give  notice,  by  difco- 
rocninated  by  vering  of  the  fame  to  the  Mafter  or  Mariners,  otherwifc: 
the  Court.  \^^  f]n^all  be  anfwered  in  the  Contribution  no  more  t|ian 
flu'hfiit'  ^^^  ^^^^  extrinfick  Value  appeared  to  be  :  But  the  Mu- 
Je  rer.  divif,  '"^^s  ^^^  hardly  fare  fo  well. 
l3  leg.  9.  §*.  If  Contribution  ftiall  be  fettled,  and  the  Merchant  will  acq.  not  agree,  the  Mafter  may  detain  the  Lading,  for  the 
rsr.  Dom.       ^^,^^  j^  ^^  tacitly  obliged  to  anfwer  that  as  the  Freights 

and  if  at  the  Common  Law  the  Merchant  fliouki  bring  an 

Adion,  the  Defendant  Ihall  bar  him  by  pleading  the  fpe 

cial  Matter. 
ff.  ihid.  leg.         If  Goods  are  caft  over- board,  and  afterwards  are  re- 
r^m?  ^''""^  covered.  Contribution  ceafes  ;  faving  for  fo  much  as  they 

are  damnified  and  made  worfe  by  reafon  of  fuch  Ejec:- 

Leg  25.  D.  dt      js^^f     Q^Q^g  ^^^  over-board  to  lighten  the  Ship,  make 

prob.  leg.  fat-  T\       1,-,  r>  7  ° 

fus  ^.Sijad-  "0  Derelict,  ^  Lo,  lO'j,  i?.  .  . 

umD.deJurt.  -f*"^ 


Chap. VI.  ©f  gfietagCjS  anb  €onttihutiom.         285 

^nd  though  fuch  NecefTity  feems  to  fubje6t  the  Lading 
Ejectment,  to  prevent  the  Ruin  and  Deftruclion  of  the 
Perfons,  yet  fome  Lading  feems  excepted,  and  therefore 
Cannon,  and  other  Inftruments  or  Provifions  conftgned  to  Bacon'^  Max, 
^gligyi'aCily,  ought  not  to  be  flung  over-board  5  for  mf°^\^7'P^i'^'i-' 
fucb  Cafe  the  Law  impofeth  on  every  Subjed:,   that  he  J'^.'^^^a  '^'" 
prefer  the  urgent  Service  of  his  Prince,  before  the  Safety  rempublkam. 

of  his  Life. 
XVII.  Goods  taken  upon  the  Sea,  are  of  three  Sorts. 

1.  Goods  taken  by  Letters  of  Mart,  by  jus  Reprifaliarum, 

2.  Taken  from  Pirates  or  Sea  Rovers  •,  And  3.  From 
profeffed  Enemies.  Thofe  Goods  that  are  taken  from 
Pirates,  are  efteemed  to  be  the  juft  Prize  or  Prey  to  any 
Taker  of  them,-  fo  that  an  Account  be  given  of  them  to 
the  Admiral.  If  a  Ship  or  Goods  be  taken  from  a  profelTed 
Enemy,  it  is  to  be  proceeded  in  according  to  the  Autho- 
rity whereby  it  was  taken.  But  if  a  Ship  or  Goods 
te  taken  by  a  profeiTed  Enemy,  and  afterwards  they  arQ 
taken  from  him,  and  the  fame  Owner  claims  them,  they 
ought  to  be  rcflored  to  him  ;  for  the  Law  looks  upon 
thefe  Goods  as  received,  not  taken,  yet  with  fome  Re- 
compence  for  them. 

By  an  Ad  13  G.  2.  c.  4.  If  a  Ship  be  retaken  by  a 
Man  of  War,  the  Ov/ners  are  to  pay  one  Eighth  of  the 
Value  of  the  Ship  and  Cargo,  in  lieu  ^f  Salvage  :  If  by 
a  Privateer  or  other  Ship  they  are  intituled  to  one  Eighth, 
in  Cafe  fuch  Ship  hath  been  in  PofTeffion  of  the  Enemy 
24  Hours :  If  above  24  Hours  and  under  48  one  fifth 
Part :  If  above  48  Hours  and  under  ^6  one  Third  :  If 
above  96  Hours  they  are  intituled  to  a  Moiety  thereof. 

By  the  faid  Ad  Privateers  have  the  fole  Property  of 
't^at  they  take  from  the  Enemy,  being  firfl:  adjudged 
lawful  Prize  in  any  of  His  Majefty's  Courts  of  Admiralty  ; 
as  alfo  5  /.  for  every  Man  on  Board  every  Ship  of  War 
or  Privateer,  taken,  funk,  burnt,  or  other  wife  defliroyed, 
who  was  living  at  the  Beginning  of  the  Engagement  be- 
tween them.  And  by  a  Proclamation  ifTued  in  Purfu- 
ance  of  this  Ad,  dated  19  June  1740,  'tis  direded  that 
the  neat  Produce  of  all  Prizes,  and  the  like  Bounty 
Money  for  Prifoners  taken  by  any  of  His  Majefty's 
Ships,  be  divided  into  eight  equal  Parts,  whereof  the 
Captain  gr  Captains  of  any  of  His   Majefty's  Ships  of 



SDf  SiUrast&  ana  €ontrimtiom.  Book  ii! 

War,  who  Ihall  be  aflually  on  Board  at  the  takino 
fliall  have  three  Eights  ;  but  if  fuch  Ship  be  under 
the  Command  of  a  Flag,  and  the  Flag  OfBcer  be. 
ing  adlually  on  Board,  or  direding  and  affifling  in  thj 
Capture,  he  is  to  have  one  of  the  faid  three  Eighths. 

Captains  of  Marines,  and   Land  Forces,  Sea  Lieute-l 
nants  and  Mailers  on  Board  one  Eighth.  '  | 

Lieutenants  and  Quarter- Mailers  of  Marines  and 
Lieutenants,  Enfigns  and  Quarter-Mafters  of  Land 
Forces,  Boatfwain,  Gunner,  Purfer,  Carpenter,  Matter? 
Mate,  Chlrurgeons,  and  Chaplain  one  Eighth. 

Midihipmen,  Carpenter's  Mates,  Boatfwain's  Mates 
'Gunner's  Mates,  Mailer  at  Arms,  Corporals,  Yeomen 
of  the  Sheets,  Coxfwain,  Quarter- Mailer,  Quarter- Ma- 
iter's  Mates,  Chirurgeon's  Mates,  Yeomen  of  the  Powder 
Room,  and  Serjeants  of  Marines  or  Land  Forces  one 

Trumpeters,  Quarter- Gunners,  Carpenter's  Crew-, 
Steward,  Cook,  Armourer,  Steward's  Mate,  Cook's 
Mate,  Gunfmith,  Cooper,  Swabber,  ordinary  Trumpe- 
ter, Barber,  able  Seamen,  ordinary  Seamen  and  Marine 
or  other  Soldiers  two  Eighths. 

If  any  CommilTion  or  Warrant  Officer  be  not  on  board 
at  the  Time  of  the  Capture,  his  Share  to  be  call  into  the 
Shares  allowed  the  Trumpeter,  ^c. 

In  Cafe  any  Perfon  have  more  Offices  than  one,  he  is 
to  have  no  more  than  what  Ihall  belong  to  his  fuperior 
Commiffion.  ^ 



(  287  ) 

CHAP.     VII, 

\;Marances^  hynjjho??iJirJi  introduced. 

II.  Ajfurancesy  the  Nature  of  them. 

III.  Hovj  ejieemedofby  La^w. 

IV.  Vh  various  Ways  of  enfuring^ 
and  on  Rvhat. 

'^.•AJfurance,  nvhen  ejleemed  tnoji 
dangerous  y  and  of  fraudulent  Po- 

yi.  Of  the  Receipt  of  ^rtmio,  and 
the  Cufiom  of  Abatement  on  Loffes. 

VII.  Policies,  iJmt  no^v  enfure 
a^ainJI  all  the  Accidents  of  Jtiea- 
wn  and  Earth. 

Vlil.  A  Ship  enfure d  generally ^ 
nuhether  the  fame  includes  the 
Cargo,  and  ^whether  it  is  necefjary 
injhe  Policy  to  mention  the  parti- 
cular Goods. 

Ia'.  Xlafes  upon  Affurances. 

X.  When  the  Policy  is  difcharged  hy 

XI.  Goods  enfured  in  one  Ship^  ^re 
after^.vards  in  the  Voyage  put  into 
anothery  the  fecond  ?nifcarries , 
'whether  the  Afiirers  are  made 

XII.  A  Man  enfure s  more  than  the 
Value  of  the  CargOy  the  Cufom  in 

fuch  a  Cafe  tvhen  ufurious, 

XIII.  A  Ship  is  infured  from  one 
Port  to  anothery  and  there  to  be 
landed  ;  the  Cargo  after  Ar ritual 
ii  foldy  and  before  landed  is  burnt y 
nvhether  the  Afjurers  pall  be  made 

XIV.  A  Ship  infured  from  one  Port 
to  (bisnk)  being  in  Time  of  War 
taken  y  <vjh ether  the  Affurers  fpall 

XV.  Of  the  Afar  ed''s  renouncing  af- 
ter a  Lofs  y  and  nvhat  Operation 
the  fame  has  by  Cufiom. 

T.  TT  is  conceived  by  Suetonius^  that  Claudius  CcefarY7SLB  In  ruita  Claud. 
X  the  firll  that  brought  in  this  Cuftom  of  JJJurance,  by  c^Jar.Uh.  25. 
which  the  Danger  and  Adventure  of  Voyages  is  divid-  ^^^'  ^^* 
ed,  repaired  and  born  -by  many  Perfons,    who  for  a  cer- 
tain Sum,  by  the  Spaniards  called  Premio.,  afiiire  Ships  or 
Goods,  or  both,  or  a  Proportion,  according  as  the  Policy 

is*.  '    *Leg-l.ff.qui 

II.  By  43  Eliz.  c.  II.  An  Office  of  JJfurance  mzs  QroLlih.  2. 
creeled  for  deciding  of  Differences  arifing  upon  Policies  cap.  12.  §.  3. 
of  AJjurance  in  London  ;  and  a  Court  was  to  be  held  for 
that  Purpofe,"  by  Virtue  of  a  (landing  Commiirion  iffued 
out  by  the  Lord  Chancellor  to  the  Court  of  Admiralty, 
the  Recorder  of  London^  two  Doflors  of  the  Civil  Law, 
two  Common  Lawyers,  and  eight  Merchants  *,  w^hich 
Vonimidioners  were  to  meet  weekly,  and  to  have  Power' 


288  !©|  PollCUS  Cf  Murance^      Book  II. 

to  fummon  and  examine  Witnefles,  and  hear  and  deter, 
mine  all  Caufes  in  a  fummary  Way,  fubjed  to  appeah, 
the  Lord  Chancellor,  (yc.  And  by  Stat.  i4C^r.  H.  J< 
25.  feveral  additional  Privileges  were  granted  to  this 
Court,  which  was  a  Court  of  Equity,  as  well  as  of  Law; 
but  now  there  is  rlo  fuch  Court  in  Being,  and  Caufes  of 
this  Nature  are  tryed  in  the  ordinary  Courts. 

By  6  Geo.  I.  r.  18.    His   Majefty  was  empowered  to 
grant  two  Charters  for  AfTurance  of  Ships  and  Merchan- 
dize, &c,  and  to  incorporate  the  Adventurers,  in  Con- 
\  fideration  of  a  large  Sum  of  Money  by  them  to  be  ad- 

2 Le-vhz.  1 5 3.      IW.Indehitat.  AJfumpfit  pro  p^'csmio  -,  upon  a  Policy  of  Jf 
Foivlk  'u.  Pin-  ji^y^yi(-Q  upon  fuch  a  Ship,  the  Defendant  demurred  fpeci- 
•^'''  ^*  ally  becaufe  he  did  not  fliew  the  Confideration  certainly 

what  the  Premium  was,  or  how  it  became  due,  [edm 
allocat^  for  it  is  as  good  as  Indehitat.  pro  quodam  Saliir% 
which  hath  been  adjudged  good. 

If  the  Perfon  whofe  Name  is  ufed  in  the  AJurance^  be 
in  Time  of  War  taken  to  be  no  Friend  to  the  State,  there 
is  danger  to  pay  the  Ajjurance  \  if  after  the  Subfcription 
of  the  AfTurer,  the  Goods  fliould  be  arreiled  and  made 
forfeited,  to  anfwer  the  fame  to  the  Prince,  as  it  often 
Lex  Mcnat,  If  Goods  are  fboln  or  embezzeled  on  Shipboard,  the 
loy-  Mafter,  -  not  the  Aillirer  is  refponfible.    So  if  the  Goods 

be  loft  in  default  of  the  Pilot. 

AfTurance  for      Policy  of  Ajjurance  to  warrant  a  Ship  for  twelve  Months ; 

12  Months,     the  Ship  did  not  periOi  within  the  time  of  twelve  Months, 

V°  ^       being  accounted  according  to  the  Months  o^  January.,  Ft- 

hruary^  &c.  but  within  twelve  Months  reckoning  twenty 

eight  Days  to  the  Month,    refolved  that  the  Policy  was 

not  forfeited  \  cited  in  Sir  IVoollafion  Dit^ey^s  Cafe  i  Um. 

IV.  A£urances  are  of  various  forts,  fome  being  to  places 

le^.  4.  5.  Z).  certain,  others  general  :  Thofe  that  are  made  to  places 

deNaut./an.  certain,  are  commonly  upon  Goods  laden  or  to  be  laden 

aboard  outward,    and  until  the  fame  Adventure  Ihall  be 

laid  afhore  at  fuch  a  Port. 

Or  upon  Goods  laden  or  to  be  laden  homeward  in  fucn 
a  Ship  till  the  Adventure  iliall  likewife  be  landed. 


Chap.  VII.   M  ^olicte^  Of  Muvmtt.  ^^ 

'drcKc  upon  Goods  out  and  in,  with  liberty  to  touch  at  Johannes  Loci- 
gll  Ports  as  are  mentioned  in  the  PoHcy.  '^'''l'  ^^^-  ^-  5* 

"  So  likewife  en  Ships  that  go  trading  Voyages,  as  round  *  ^* 
to  Cadiz ;  and  that  it  iliall  be  lawful  after  the  Ship's  deli- 
very there,  to  take  in  at  the  fume  Port  another  CargoJ, 
anii  with  that  proceed  to  the  PFeft-hdies  or  othtv  p3,vt5 
and  back  again  to  Cadiz,  and  from  thence  to  London  %  this 
j  Policy  being  general  and  dangerous,  feldom  procures  fub- 
fcriptions,  or  at  leaft  very  chargeable  ones. 

As  Goods  and  Merchandize  are  commonly  enfured,    fo  Sautor.p.  5." 
likewifeare  the  Ships  Tackle  and  Furniture;  but  in  re-  r.iun.  i^.feq. 
aard  there  feldom   happens  a  Voyage  but  fomewhat  is  43-/^f- 
mifTing  or  lofb,  the  Fr'cniio  Qommonly  runs  higher  than 
for  Merchandize. 

Ajftirances  may  be  made  on  Goods  fent  by  Land,  fo  Lip 'ver  Sedg- 
jikewife  on  Hoys,  and  the  like,  and  may  be  made  on  the  ^^i^:^*  Mkh.^ 
heads  of  Men  ;  as  if  a  Man  is  going  for  the  Streights^  and  ^^^''*^'  ^*  ^* 
perhaps  is  in  fome  fear  that  he  may  be  taken  by  the  Moors 
or  furkijh  Pirates,  and  fo  made  a  Slave,  for  the  Redemp- 
.tion  of  whom  a  ranfom  mud  be  paid,  he  may  advance  a 
"Premio  accordingly  upon  a  Policy  of  Ajjurance  j    and  if 
there  be  a  Caption,  the  Aflurer  mud  anfwer  the  Ranfom 
that  is  fecured  to  be  paid  on  the  Policy. 

V.  Thofe  JJjurances  are  moil  dangerous  v^hen  there 
are  thefe  words  inferted,  loft  or  not  loft ;  which  is  commonly 
done  when  a  Ship  hath  been  long  mifling,  and  no  Tidings 
can  be  had,  the  Premio  (cfpecialiy  in  time  ot  War)  will 
run  very  high,  fometimes  30  or  40  per  Cent,  and  though 
it  happens  at  the  time  that  the  fubfcription  is  made,  the 
Ship  is  caft  away,  yet  the  AlTurers  mud  anfwer. 

Bat  if  the  Party  that  caufed  the  AJfurance  to  be  made,  LodnlmM-^- 
Taw  the  Ship  wreckr,  or  had  certain  Intelligence,  fuch  ^^/'•5-i9'io- 
fubfcription  will  not  oblige,  the  fame  being  accounted  a  j^thur  Stock- 
meer  fraud.  den's  Cafe, 

Solikewife  if  the  Afilired,  having  a  rotten  Ve {Tel,  fhall  i'^^^f^^-  26  Car. 
aflfure  upon  the  fame  more  than  fhe  is  worth,  and  after-  \l^^^^'^^^ 
wards  give  order  that  going  out  of  the  Port,  fhe  lliould  convidedb/ 
be  funk  or  wreckt,  this  will  be  fraudulent,  and  not  oblige  information 
the  Affurers  to  anfwer.  ''^^  ^^^  ^^^^^^ 

A  Merchant  ^laving  a  doubtful  Account  of  his  Ship,  in-  2.  P.  M^illiams 
furesher,  without  acquainting  the  Infurers  of  her  Danger  ;  ^7^- 
Chancery  relieved  againil  the  Policy  of  this  fraudulent  In-' 
furance.  T  I^ 

290        ^  £)f  ^Olkit^  of  Mtttance*      Book  II. 

In  the  Year  1678.  one  Nownham  Perkins  and  ^ioaku 
were  Owners  of  a  Veflel  called  the  May-Flower  Ketch,  the 
Veflel  coming  laden  with  Wines  on  the  account  of  hfr- 
hrajfe  and  Stone^  to  the  IJle  of  Wight  •,  Perkins  being  then 
;  in  the  fame  Place,  contrives  with  one  Ivy  the  Mailer  to 

fell  the  Freighters  Goods  privately,  and  that  being  effc^. 
ed  to  go  out  to  Sea  fome  fmall  diftance  from  the  Ifle,  and 
there  privately  fmk  the  Veflel,  and  pretend  fhe  ftruck, 
and  then  foundred  by  the  Extremity  of  Weather.  The 
Plot  being  laid,  Perkins  haftens  up  to  London^  and  makcsa 
Policy  diAjJiirance  on  the  Veflel ;  which  being  done,  re- 
mits his  Orders  to  Ivy  to  put  in  Execution  the  contrivance, 
who  accordingly,  the  Goods,  or  the  befl:  of  them,  bei/ig 
difpofed  of,  fl:ands  out  to  Sea,  and  then  with  his  oij^fii 
Hands,  by  the  Force  of  an  Iron  Crow,  makes  a  hole  ii^tbe 
Hold,  and  then  in  his  long  Boat  (the  Crew  perceiving  the 
Veflel  to  be  finking)  conveys  himfelfand  Mariners  afhore/, 
Ivy  remits  up  advice  of  the  lofs,  and  Perkins  (as  if  he  had 
never  known  any  thing  of  the  Matter)  demands  the  Mo- 
nies afllired  with  great  Confidence,  and  thereupon  bringi 
an  Aclion  for  the  fame  ;  but  before  the  Caufe  came  to  a 

Hill  32.  Car.  Tryal,  Fierhrajfe  and  Stone  bring  Trover  againft  P^r%» 

2.  B.  R.  and  thereupon  the  whole  Pradice^came  out,  and  a  ter- 
dicl  was  had  againft  the  Defendant,  wnth  this  further, 
That  if  Perkins  would  proceed  on  his  Actions  on  the  Af- 
furance,  he  muft  exped  that  this  pra6lice  and  fraud  gf  his, 
would  totally  poifon  his  JJfurance^  and  thereupon  being 
well  advifed,  never  proceeded. 

L.  Raymond,        The  Infurance  was  againft  the  Barretry  of  the  Mailer; 

<349'  the  Breach  afljgned  was,   that  the  Ship  was  loft  by  the 

Fraud  and  Negled  of  the  Mafter  ;  this  is  well  enough; 
it  is  the  Meaning  of  the  Words  of  the  Policy  ;  it  is  not 
neceflfary  to  ufe  the  very  Words. 

Ibid.  840.  The  Government  laid  an  Embargo,  feized  a  Ship,  and 

converted  her  to  a  Fire-fliip  -,  the  Infurers  are  liable. 

Uid,  Holt  C,  J,  In  Cafes  of  Deviation,  the  Infurers  are  liable 

s  for  Damages  before  the  Deviation  •,  and  from  the  Time 

gf  the  Deviation  they  are  difcharged. 

VI.  Befidcs  the  two  Corporations  before- mention'd^ 
there  are  feveral  Offices  near  the  Royal- Ex  change  for  the 
ftflfuring  Ships  and  Merchandize,  where  many  of  the  moft 

Eminent  Merchants  bv  their  Subfcriptions  fubjed  then)- 


Chap.  VII.    M  polim0  Of  Muvmtt  291 

felves  to  the  Payment  each  of  a  Sum  certain,  as  100  /.  or 
jnore,  at  the  Premio  then  current,  which  in  the  Policy  is 
faid  to  be  received,  tho'  it  may  be  not  adlually  paid  :  There 
ufed  to  be  a  Claufe  to  dedudl  10  per  Cent,  in  Cafe  of  Lofs, 
andfix/>^r  Cent,  more  was  cuilomarily  abated  on  Account 
of  prompt  Payment.  So  that  the  aflured  received  but  84  /. 
w  Cent,  But  of  late  it  is  become  much  more  frequent  to 
ftipulate  for  an  Abatement  of  two  per  Cent,  only,  in  which 
Cafe  there  is  a  proportional  Advance  of  the  Premio. 

If  an  Afiurer  pays  his  Money,  believing  the  Ship  io 
be  loft  when  it  is  nor,  he  may  bring  an  AJfumpfit  for  the 
Money.  Cited  to  be  adjudged,  Salk.  22.  />/.  2. 

VII.  The  Policies  now  adays  are  fo  large,  that  almod  all 
thofe  curious  Queftions  that  former  Ages,  and  the  Civili- 
ans according  to  the  Law  Marine,   nayand  the  common 
Lawyers  too,  have  controverted,  are  now  out  of  debate  ;  ^^^  ^^'^  ^''^  /*^* 
fcarce  any  misfortune  that  can  happen,  or  provifion  to  be  ^^^  ^abtofUum 
made,  but  the  fame  is  taken  care  for  in  the  Policies  that^^^^^^^^^y-^^^^ 
are  now  ufed  ;  for  they  enfure  againft  Heaven  and  Earth,  njip'ublkoperU 
ftrefs  of  Weather,  Storms,  Enemies^  Pirates,  Rovers,  ^c.  ^«^^  #«^-  ■^'"^- 
or  whatfoever  detriment  fliall  happen  *  or  come  to  the  g'^^'f^p^'^^ 
thing  enlured,  <5c.  is  provided  ror.  ' p^j.^^  fi'fccpto 

in  fe  damno,Ji 
mtiuidfer  Umpeftatei  accidijffet^  Livlus,  lib.  t^.  cap.  25.  /^/dV  Zefius  In  Commentario 
ad digefia  tit.  pro  Socio ^  num.  2^. 

*  ^ub  nomine  periculi,  de  quo  fit  catttiOy  comprehenditur  omnis  cafus  qui  acddlt  in  mart, 
a  tempefiat£y  ab  hoftibus^  pr^donibus,  reprifaliii^  ut  <vocant  arrejlis  aliifque  modis  ufitatis 
kS  inufitatii  citra  fraudem  ^  ciilpam  contrahentiumy  aut  domini  mercium  njel  navis.  Gro- 
tias  de  Jure  HolL  part.  24. 

But  a  Policy  againft  Reftraint  of  Princes,  will  not  ex-  2  Fern.  176. 
tend  to  Pradices  againfl  the  Laws  of  Countries,  to  a  Sei- 
zure for  not  paying  Cuftom  and  the  like. 

A  Man  lent  Money  on  a  Bottomry-Bond,  and  infjred 
the  fame  Money  on  the  Ship  ;    jQie  out-lived  the  Time  in 
v^hich  die  Bond  came  due,  and  then  was  loft  ;  he  reco- 
I  Vers  on  the  Bond  •,  Chancery  would  not  fuffer  to  recover  Egu.Jlr.'tyi, 
'  on  the  Policy  alfo,  but  decreed  it  to  be  delivered  up.         and  2  Fn;:. 
But  where  the  Infurance  was  larger  as  to  the  Voyage,  269. 
than  the  Bottomry-Bond,  and  the  Ship  was  loft,  Chan-  oFem.yir^ 
eery  would  not  intermeddle.  •  ^ 

Where  the  AfluVance  is  Intereft  or  no  Intereft,  what 
Chancery  will  do,  See  2  Fcrnon  716. 

T  2     •  VIIL  If 



92  M  I^OltCieSi  of  Mmantt.    Book  tf 

Locintus,  lib.        VIII.  If  a  Merchant  enfures  fuch  a  Ship  generally,  anc 

2.  ^«>.  5.,§.  7.  jj^  |-]^e  Policy  it  is  exprelTed  of  fuch  a  Burthen,  the  Ship 

^'      *  happens  then  to  be  laden  and  after  mifcarries,  the  Enfu- 

rer  (liall  not  anfwer  for  the  Goods,  but  only  for  the  Ship, 

It    matters  not  in  the  Policy  whether  the  particukl 

Wares  and  Goods  are  named,   but  generally  upon  the 

Principal  Wares,  and  all  other  Commodities  laden  or  to 

be  laden  for  the  Enfured,  or  for  his  Account,  or  for  any 


IX.  If  a  Ship  be  Enfured  from  the  Port  of  London  to 

Cadiz,  and  before  the  Ship  breaks  Ground,  takes  Fire, 

and  is  burnt,  the  Aflurers  in  fuch  a  cafe  fhall  not  anfwer, 

for  the  Adventure  begun  not  till  the  Ship  was  gone  from 

the  Port  of  London  •,  but  if  the  Words  had  been,  atcni 

from  the  Port  of  London,   there  they  would  upon  fucn  a 

misfortune  have  been  made  liable. 

h-ote.  The  jf  ^^^}^  ^j^  Affurance  had  been  from  London  to  CadiZs  and 

^•^«%xtends'     ^^  ^^^^P  ^^^^  broke  Ground,  and  afterwards  been  driven 

from  the iVor//^  by  Storm  to  the  Port  o^  London,  and  there  had  took  Fire, 

Fore  land  in  the.  the  Eufurcrs  muft  have  anfwered  ;  for  the  very  breaking 

Iile  of  Thanet,  ^f  Ground  fi'om  the  Pqrt  of  London  was  an  Inception  ot 

over  in  a  Line     1       it  '^ 

to  the  A^.y-.  in  the  Voyage. 

Efex,  and  On  the  Other  hand,  if  a  Man  at  Cadiz  enfures  a  Saip 

from  thence  from  thence  to  London,  if  a  lofs  happens,  the  Aflurer, :; 

to  London-  j^^  comes  iuto  England,  (hall  anfwer  by  the  Common  La'^\ 

Bridee,    Rot.      u  ,  ^        ^  \  ^  ^         c    ^   r     •      ■  J 

Scaaar.'iQ.     ^^^  though  tuc  placc  whcre  the  Subicription  was  mau., 

Car.  2.  and  the  Premio  given  was  in  a  Foreign  Country,  yet  thai 

is  not  material,  for  the  Action  that  is  brought  is  ground- 

7  H.  6.  14..  tn  ^^  Q^  ^YiQ  Prcmife,  which  is  tranfitory,*  and  not  local,  ,■■. 

"c^^z!  Tryal  ^^  ^^  ^'^^  adjudged  where  the  Defendant  in  confk.-- 
54.. '    '  of  I  o  /.  had  enfured,  that  if  the  Plaintiff's  Ship  and  Gcoo 

34  H.  8.  tit.    did  not  come  fafe  to  London,  he  would  pay  100/.  afic:- 
Wh  i  wards  the  Ship  was  robb'd  on  the  Sea,  and  in  an  Ate. 

'I'.EI:!*       brought  for  the  100/.  the  Plaintiff  had  Judgment,  not- 
withflanding  the  Robbery  or  Lofs  V7as  on  the  main  fe 
and  the  Subfcrlption  out  of  the  Realm. 
SalL  444.  X.  If  after  a  Policy  o^  Affurance,  a  damage  happens,  anc 

^cixttm^l^t'  ^^^c^^^^^^s  ^^  f'^'^  ^^^e  Voyage  a  Deviation  ;  yet  the  In- 
.,-^     c  tfw.  j-^^j.^^  £|^^^||  j.(,(,Qy£j.  fQj,  what  happened  before  the  Devia- 

*  That  has       tlon,  for  the  Policy  is  difcharged  the  Time  of  ll^^' 
been  mucii      Deviation  only. 

i.abtcd,  and      xi.  If  Goods  are  Enfured  in  fuch  a  Ship,  and  after- 


Cfl  A  P.  VII.   iS>t  polUit^  of  Mmamt.  293 

wards  in  the  Voyage  it  happens  flie  becomes  leaky  and  Opinions  oF 
crizy,  and  the  Super- Cargo  and  Mailer  by  conient  become  ^^'^  ^^^^^ 
Freighters  of  another  VefTel  for  the  fafe  delivery  of  the  jv^ncfineT  ' 
Goods ;    and  then  after  her  relading,    the  fecond  Veflel  againil  the 
lifcarries  *,   the  Affurers  are  difcharged  :  But  if  there  be  Affurers.  Le^ 
thefe  words,  Tbe  Goods  laden  to  he  tranfported  and  delivered  ^^/^  ^^  p^''^f\ 
atfuch  a  place  by  the  f aid  Ship,  or  hy  any  other  Ship  or  FeJ/el  iii  \.^  "tl^Lz. 
until  they  he  fafely  landed^  then  the  Enfiirers  mufl:  anfwer  §.  10. 
:e- misfortune. 

XII.  If  a  Man  Enfures  5000  /.worth  of  Goods,  and  he  Vide  Groth- 
hath  but  2000/,  remitted,  now  he  having  enfured  a  real  trod.Jur.Holl. 
Adventure,  by  the  Law  Marine  all  the  AfTurers  mull  an-  fj^deed^is^ 
{\mpro  rata,  if  a  lofs.    But  by  the  Opinion  of  fome,  only  niore  the  Cu- 
thofe  firft    Subfcribers  who  under- writ  fo  much,  as  the  ftom  of  Mer- 
r^ajl  Adventure  amounted  to,  are  to  be  made  liable,  and  chants  than 
the  reft  remitting  x}^tu  Fremio  (lo^f.  p^r  C^;^/.  deduded    ^^' 
out  of  the  fame  for  their  Subfcriytions)  are  to  be  dif- 

Oii  a  Policy  of  Infurance  on  Goods  by  Agreement  va- 
laed  at  600  /.  and  the  Infured  not  to  be  obliged  to  prove  ^    ^^^'  ^ 
ahylntereft,  the  Lord  Ci?/2;?r^//^r, ordered  the  Defendant  ' 

to  aifcQvq'r  what  Goods  he  put  on  board;  for  akhough 
the  Defendant  OiTe red  to  renounce  all  Intereft  to  the  In- 
furers ;'  yet"  referred  it  to  a  Mafter  to  examine  the  Value 
of  tjie  Goods  faved,  and  to  dedud:  it  out  of  the  Value  or 
Slim  of  600  /.  at  which  the  Goods  were  valued  by  the 

Debt  upon  Obligation  with  Condition,  to  pay  fo  much 
Mopey,  if  a  Ship  returned  within  fix  Months  from  Oftend 
'mPlanders  to  London  (vyhich  v^as  more  by  a  Third  part 
than  the  Legal  Intereft  of  the  Money)  and  if  fhe  do  not 
return  then  the  Obligation  to  be  void  :    The  Defeadant 
pleaded  that  there  was  a  corrupt  Agreement  betv/een  him 
and  the  Plaintiff,  and  that  at  the  time  of  making  of  the 
^Obligation  that  he  fliould  have  no  more  for  Intereft^  thaa 
.the  Law  permit's,    in  cafe  the  Ship  ilould  ever  return, 
and  avers  thai;  .the  Bond  was  entre4  into  by  Covin  to 
.'avoid  the  Statute  of  Ufury.  Per  Eale^  clearly  this  Bond 
,is:tiot  v/ithin  the  Statute,  for  this  is  the  common  Way 
of  AfTurance,  and  if  this  were  void  by  the  Statute  of  U- 
fury.  Trade  would  be  deftroyed,    for  it  is  a  cafualty  whe- 
ther ever  fuch  Ship  (hall  return  or  not,  but  he  agreed  the 

T  3  Averment 


294  ©f  lUolicte^  of  afftirance.   Book  ii. 

Averment  was  well  taken,  becaufe  it  difclofed  the  manner 

of  the  Agreement.  Hardres  418.  Joy  againft  Kent, 

To  depart  Adion  upon  the  cafe,  upon  a  Policy  of  AfTufanceof 

wich  Convoy.  Qoods  from  London  to  Naples  \  the  Adventure  was  to 

AMod  zS°'  begin  in  time  of  the  Lading  at  London  (dangers  of  the 

3  Lev.  320.    Sea  only^  excepted j    with  this  Claufe,   warranted  to  it- 

^<a/i443.      part  with  Convoy,  the  Ship  departed  with  Convoy,  btit 

v/as  feparated  from  the  Convoy,  by  flrefs  of  Weather, 

and  put  into  ^orhay^    and  was  there  detained  by  contrary 

"Winds  ;    afterwards  the  Mailer  of  the  Ship  expedingto 

meet  the  Convoy,  departed  out  of  the  Harbour,  but  could 

not  meet  the  Convoy,  being  hindred  by  ftrefs  of  Weather, 

the  Ship  was   taken    by  the   French,      Judgment  p 


Sail  44^.  Cafe  upon  a  Policy,  which  was  to  infure  the  Willim 

Galley^  in  a  Voyage  from  Bremen  to  the  Port  of  London^ 

warranted  to  depart  with  Convoy  :  The  cafe  was,  the  Galley 

fet  fail  from  Bremen  under  Convoy  of  a  Dutch  Man  of 

War  to  the  Elb,    where  they  were  joined  with  two  other 

Dutch  Men  of  War,  and  feveral  Dutch  and  Englijhy[txz\m. 

^Ships,  whence  they  failed  to  the  ^exel,  where  theyfoilnd 

"a  Squadron  of  Englifi  Men  of  War  and  an  Admiral ;  'after 

a  ftay  of  nine  Weeks,  they  {tt  out  from  the  Texel^  and  the 

Galley  was  feparated  in  a  Storm,  and  taken  by  a  FrM 

Privateer,    taken  again  by  a  Dutch  Privateer,  and  paid 

So  /.  Salvage,     And  it  was  ruled  by  Holt  C.  J.    That  the 

Voyage  ought  to  be  according  to  Ufage,  and  that  their 

going  to  the  £//»,    tho'  in  Fadl  out  of  the  Way,  was  no 

Deviation  ;  for  till  after  the  Year  2703.  there  was  fio 

Convoy  for  Ships  dire6tly  from  Bremen  to  London  :  And 

.     the  Plaintiff  had  aVerdid.  Bondv,  Gonfalfe^  February  tif 

1704.  coram  Holt  C.J,  at  Ni/i  Prius  at  Guildhall, 

Warranted  to  depart  with  Convoy  has  been  refolved  to 
import,  by  the  Ufage  of  Merchants,  a  Continuance  with 
that  Convoy  as  long  as  may  be.  Lucas*s>  Reports  287. 
locin.  L  2.  •  XIII.  A  Merchant  Enfures  his  Goods  from  Londoni(i 
And  by  the  'S'^^'^'^^,^nd  there  to  be  landed  ;  theFadlor,  after  arrival, 
Laws  of  ^«/-  having  Opportunity,  fells  the  Cargo  aboard  the  fame  Ship 
'vjerp  there  is  without  ever  unlading  her,  and  the  Buyer  agrees  fdr  the 
aftlTthe°"''^  Freight  of  thofe. Goods  for  the  Port  of  Venice ;  before  flic 
Ship's' arri-  breaks  Ground  the  Ship  takes  Fire,  the  AfTured  and  Buyer 
vai  at  her       are  abfolutcly  without  remedy  5   for  the  Property  of  the 

Port  how  Goods 



(^H AP.  v^ii.   £)f  Poiicfe^  of  Mmanct.  2gs 

Goods  becoming  changed,  and  Freight  being  contra6led  long  the  Ad- 
k  novo,  the  fame  was  as  much  as  if  the  Goods  had  been  venture  is  to 

J  J  be  born  by 

J^ndecl.  ^     ^  tjjg  Enfurers " 

And  fo  it  is  if  the  Fadlor  after  her  arrival  had  contrad-  which  is  a-  * 
jjd  for  Freight  to  another  Port,  and  the  Ship  had  happen-  bout  1 5  days, 
ed  to  take  Fire,   the  Affurers  are  hereby  abfolutely  dif- ^'^^- ^3- 4:/^- 
^^arged  for  ever.  ^  Cafe  oTS- 

XIV.  If  a  Ship  be  Enfured  from  London  to  and  fieur  Gomdan 
Jblank  being  left  by  the  Lader  to  prevent  her  furpize  by  Governor  of 
Wie  Enemy,    in  her  Voyage  fhe  happens  to  be  call  away,  ^^^^^^  ^^^''■ 
fthbugh  there  be  private  Inflrudlions  for  her  Port,  yet  the  ^^  ^* 
Enfured  fit  down  by  the  lofs,  by  reafon  of  the  uncertainty. 

So  a  Blank  is  left  in  the  Pohcy  for  the  value  of  the  Ship  or 
Lading,  if  a  lofs,  and  there  be  not  words  that  may  fup- 
ply,  the  Enfured  may  endanger  the  Policy. 

A  taking  of  a  Ship  (that  is  infured)  by  Pirates  is  to  Silks  1^2: 
be  underftood,  the  Perils  of  the  Sea.  ^  ^'^^'  ^^^^ 

Where  Goods  are  redeemed  from  a  Pirate,  contribu-  ^"^  * 
tion  muft  be  paid  by  all,  becaufe  the  Redemption  is  made 
for  the  fafety  of  all ;  but  if  the  Pirate  be  once  Mailer  of 
f^l,  and  yet  take  but  fome  fpecial  Goods  •,  whether  from 
Ship  or  Merchant,  and  not  as  a  Contentation  for  fparing 
of  the  reft,  in  this  cafe,  becaufe  the  Remainder  is  not 
affured  thereby,  but  freely  fpared,  no  Contribution  is  to 
be  made  for  the  taken  Goods  to  charge  any  AfTurer  with 
any  part  thereof.  So  Contribution  fhall  be  made  for 
Goods  fpoiled  by  wet,  or  other  accident.  Again  if  it 
be  needful  to  lighten  a  Ship  for  her  eafier  entry  into  Har- 
J|y)ur  or  Channel,  two  parts  of  the  Lofs  fall  upon  the 
IjGeods,  and  the  third  upon  the  Ship  •,  unlefs  the  Ship  is 
more  worth  than  the  Lading,  and  the  charge  of  the 
Goods  be  not  the  Caufe  of  her  inability  to  enter,  but 
fome  bad  quality  proceeding  from  the  Ship  itfelf,  or 
that  btherwife  it  be  provided  in  the  Charter-party.  Le:>c 
Merest.  109. 

XV.  After  notice  of  Lofs,    the  Enfured,    (if  he  doth  Lociniusy  /.  2^ 
think  fit)  for  that  he  hath  Enfured  the  mofbof  his  Adven-  ^'  5-  §•   ^• 
ture,  or  that  he  would  have  the  affiftance  of  the  Affurers  ; 

when  there  is  hope  of  Recovery  of  the  Adventure,  he  may 
then  make  a  Renunciation  of  the  Lading  to  the  AfTurerSa 
then  he  comes  in  himfelf  in  the  nature  of  an  Enfurer,  for 



296  £Df  Policies  of  aUxttailCe.      Book  IJ, 

fo  much  as  fliall  appear  he  hath  born  of  the  Adventure 
beyond  the  Vakie  enfured. 

But  if  the  Merchant  fhall  not  renounce,  yet  there  is  a 
power  given  in  the  Pohcy  for  him  to  travel,  purkie,  and 
endeavour  a  Recovery  (if  poffible)  of  the  Adventure  after 
a  misfortune  to  which  the  Afliirers  are  to  contribute,  the 
lame  being  but  a  trouble  to  give  eafe  to  the  Afifurers. 

If  prohibited  Goods  are  laden  aboard,  and  the  Mtr- 
chant  enfures  upon  the  general  Pohcy,  which  always  con- 
tains  thefe  words  :,  Of  ths  Seas^  Men  of  War^  Fire^  Ene. 
mes^  Pirates^  Rovers^  Thieves y  Jellezons^  Letters  cf 
Ma/l^  dnd  CounUrmarty  Arrefls^  Reflrainments  and  Ds- 
tainments  of  Kings  and  Princes^  and  all  other  Perfons^  Bar^ 
retry  of  the  Mafter  and  Mariners^  and  cf  all  other  Perils^ 
Lojj'eSy  and  MisfDrtunes  vshatfoever  they  he^  and  hcwfomr 
they  fhall  happen  to  come^  to  the  hurt  and  detriment  of  tk 
Goods  and  Merchandize^  or  any  part  or  parcel  thereof  \ 
whether  if  fuch  Goods  be  lawfully  feized  as  prohibited 
Goods,  the  Enfurers  ought  to  anfwer  ?  It  is  conceived 
they  ought  net  ;  and  the  dilrerence  hath  been  taken, 
where  Goods  are  lawful  at  the  timiC  of  Lading  to  be  im* 
•  ported  into  that  Country,  for  which  they  are  configned 
sbr  ;  but  by  matter  ex  pcfi  farro  after  the  lading  they  be- 
come unlawful,  and  after  arrival  are  feized,  there- the 
AfTurers  muft  anfwer,  by  virtue  of  the  Claufe,  And  all 
other  Perils^  &c.  But  if  the  Goods  were  at  the  time  ot" 
lading  unlawful,  and  the  Ladcr  knew  of  the  fame,  fdch 
AITurance  will  not  oblige  the  Afiurers  to  anfwer  the  iois-, 
for  the  fame  is  not  fuch  an  Aflurance  as  the  Law  fup- 
ports,  but  is  a  fraudulent  one. 
h  h€(  (on-  A  Policy  was  made  from  Cadiz  to  Vera  Cruz  in  '^'^' 

iraau  hona  Spain^  upon  Monies  lent  upon  Bottomry,  and  upon  anv 
^^lumefl^^ut  ^^^^  ^^  Goods  and  Merchandize  whatfoever  loader 
rMturanliro  aboard  the  Good  Ship  called  the  Noufira  Seignora  ddC&r- 
€iiroque  obli-  men  and  Mary  Magdalen^  the  Adventure  beginning  im- 
gaiioms  fofu-  lyjcdiattly  from  the  lading  before  a  day  to  come,  and  the 
/?/'  -,  ^!!.?"!'  Monies  from  the  tim.e  they  v/ere  to  be  lent,  and  fo  to 
§  8.  '    continue  fromi  Cadiz  to  Vera  Critz,    and  after  Delivery, 

with  Provifo  to  flay  at  any  Port  or  Place  in  her  Voyage, 
and  likewife  to  touch  at  Porto  Rico,  and  there  to  lade  and 
unlade  without  any  Prejudice  to  the  Enfurance,  the  Cargo 
,l?eing  valued  at  1700/,   SterL    without  Account,    ^'^^ 


QiAP.  VII.  flPf  Solicits  of  Mmmtz.  297: 

aaaioft  '^'^^*^'  -^^^^  ^f  ^^^^^  Fires,  Enemies,  Pirates,  Ro* 

vers,  'Thieves,  Jettezons,  Letters  of  Mart  and  Counter  mart , 

Surprizals  at  Sea,  Arrejls,  Rejiraints  and  Detainments  of 

(ill  Kings,  Princes,  and  People,  of  what  Nation,  Condition 

Qf.Gjuality  foever.     The  Ship  being  laden  at  Cadiz,  did 

depart  towards    Vera   Cruz,    and   before    arrival   there, 

touching  at  Porto  Rico,    the  Goods  were  there  feized  and 

arrefted.     In  an  Adlion  brought  upon  the  Policy,  the  Houbknd'v, 

Defendant  came  in  and  pleaded.  That  the  Ship  at  her  ^^j-pM- 

arrival  in  her  Voyage  at  the  Port  of  Rico,   was  laden  car  l^'^^ 

with  Goods  and  Merchandize  prohibited,  and  the  fame,  y^^.  /« 

and  alfo  the  Ship,  did  there  become  forfeited  by  Default  P^M-fe^. 

of  the  Proprietors,  and  was  there  feized  and  taken.     The 

Queftion  was,    if  the  Owners  Ihould  enfure,  and  then 

order  prohibited  Goods  to   be  laden,    whether  that  an  ■ 

Arreft  upon  the  fame  Ihould  entitle  them  to  a  Recovery  ? 

The  fecond  Objedion  was,    If  (as  the  Defendant  had 

pleaded  this  Plea)    the  fame  were  good  ?    As  to  the  firft, 

the  Court  did  all  incline,  that  the  Enfurance  ought  to  be 

honafide^  i.  e.  the  R«{lrarint  ought  to  be  of  fuch  Goods  as 

by, Law  were  not  reftrainable  ;  but  furely  that  cannot  be, 

for  the  Intention  of  Policies  are  to  warrant  the  Perils  of 

all  manner  of  Goods  in  all  manner  of  Cafes.     So  that  if 

there  be  a  loading  l^ona  fide,  be  it  prohibited  or  not,  the 

fame  in  Cafe  of  Lofs  ought  to  be  anfwered,  unlefs  it  were 

E'ft^udulent  Contrivance  :    But  to  the  fecond,  it  was  re-  Like  JuJg- 

folved,  That  the  Plea  was  infufficient  -,  for  admitting  the  "^^"^  ^^^  S^" 

fame  Ihould  not  oblige  the  Enfurer,   yet  becaufe  the  De-  YethSeradf 

fendant  did  nd't  lliew  that  the  Goods  were  laden  either  Uouhland, 

by  the  En  fu  red,  or  by  their  Fad  or  or  Order,  otherwife  !/>/«.  32  c«r. 

the  fame  fnould  not  conclude  them  ;  for  perhaps  the  Ma-  ^-  ^"  -f  *  ^' 

fter  or  his  Mariners,  or  a  Stranger,  might  load  them  on 

Board  without  Order,  fo  that  upon  the  meer  InfufHciency 

of  the  Manner  of  Pleading,  and  not  of  the  Matter,  the 

Court  gave  Judgment  for  the  Plaintiif. 

But  if  a  Merchant  will  freight  out  Wool,  Leather*  *  nCar^z. 
and  the  like,  or  fend  out  Goods  in  a  Foreign  Bottom  '\,  ^^p-  32- 
and  then  make  a  Policy,  the  Ship  happens  afterwards  to  ^^  ^^^'  ^* 
be  taken,  by  Reafon  of  which  there  becomes  a  Foifeiture  f  izCar. 
of  Ship  and  Lading,  the  Eniurers  are  not  made  fubjed  cap.  18. 
to  anfv/er  the  Damage  ;  for  the  very  Foundation  was  ille- 
gal and  fraudulent,  and  the  Law  iupports  only  ihofe  Aflu- 



298  SDf  PoUckS  of  affUtance.     Book 

ranees  that  are  made  bona  fide  ;  for  if  otherwife,  and  Men 
could  be  enfured  againft  fuch  Adions,  they  would  de- 
£lr,oy  Trade,  which  is  directly  to  thwart  the  Inftitution 
and  true  Intentions  of  all  Policies. 

But  if  Goods  fhould  happen  to  be  lawfully  Enfured,  and 
afterwards  the  VeiTel  becomes  difabled,  by  reafon  of 
Ritterjhuf.  ad  which  they  relade  by  confent  of  the  Super-Cargo  or  Mer. 
leg.  contraa,  chant,  into  another  VeiTel,  and  that  Veflel,  after  arrival 
^Ir  ^f  Ts  P^^^^^  ^^  ^^^P  ^^  ^^  Enemy,  by  reafon  of  which  the 
/"'^z  36,  237*.  Ship  becomes  fubjed  to  Seizure;  yet  in  this  Cafe  En- 
Stypman  diao  furcrs  fhall  anfwer,  for  that  this  is  fuch  an  Accident  as  is 
iQQCkfium.  335.  within  the  Intention  of  the  Policy. 

Several  Men  lade  aboard  Salt,  without  diftindion,  not 
putting  them  in  Sacks,  and  the  like  •,  the  Ship  arrives, 
the  Mafter  delivers  to  their  Principals  according  to  their 
Bills  of  Lading  as  they  come  one  by  one,  it  falls  out  that 
fome  of  the  Salt  is  wafh'd  or  loft  by  reafon  of  the  Damp- 
nefs  of  the  Ship,  and  that  the  two  laft  Men  cannot  re- 
ceive their  Proportion.  There  are  in  this  Cafe  thefe 
things  to  be  confidered  : 

'  I.  Whether  the  Mafter  is  bound  to  deliver  the  exad 
Quantity  ? 

2.  Whether  thofe  that  have  received  this  Lofs  can 
charge  the  Affurers  ? 

3.  Whether  the  AfTurerers  can  bring  in  the  firft  Men 
for  a  Contribution,  they  having  their  Salt  delivered 
to  them  compleatly  ? 

Hill  II  Jac,  Certainly  the  Mafter  is  not  bound  to  deliver  the  exacl 
in  c.  B.  Lajl-  Quantity,  nor  is  he  obliged  to  re-deliver  the  very  fped- 
^'P^f  ^"^^^'^-  fical  Salt,  but  only  as  Men  are  to  repay  Money  or  Corn  by 
Hobart,  ^fol  ^^  diftin6tion  in  a  Bag  or  Sack,  and  out  of  them  \  but  if 
j58.     '  the  Fault  was  in   not  pumping,   keeping  dry  his  Deck, 

Leg.  quod,  con-  and  the  like,  there  e  contra  :  Though  perhaps  there  may 
^enit  de  njerb.  ^g  fp^^ial  Agreement. 

° '  Befides,  this  is  a  Peril  of  the  Sea  which  the  Mafter 

could  not  prevent,  and  of  neceftity  he  muft  deliver  to  one 
firft  before  another. 

As  to  the  fecond.  It  is  no  Queftion  but  that  the  Affurers 

fhall  anfwer.     But  whether  they  ftiall  bring  in  the  firft 

Men  for  Contribution,  may  be  ibme  doubt. 

D.  Leg.  in  It  has  been  conceived  by  fome,    that  they  ought  not } 

p^oMan,  fQj.  ^hey  delivered  their  Salt  to  thc'^fvlafter  tajiquam  in 

.^  Qredituinx 


Chap.  VII.  1D(  polf Cie0  fif  Muvmct  299 

Creditum^  and  were  not  to  exped  the  redelivery  oF  the 
jame  fpecifical  Salt. 

But  by  others  it  has  been  conceived  they  ought  to  con- 
tribute pro  ratione  \  for  as  Goods  of  neceflity,  fome  muft 
be  flowed  in  the  Hold,  and  that  fuch  Goods  feldom 
cfcape  the  Peril  of  the  Sea ;  fo  the  reft  muft  of  neceflity 
contribute  to  that  Misfortune,  and  fo  make  no  Diftinc- 


The  Bills  of  Lading  are  very  ufeful  to  fettle  the  Diffe- 
rence between  the  AfTurer  and  AfTured,  of  which  there 
are  three  Parts,  one  fent  over  Sea,  the  other  left  with  the 
Mailer,  and  the  laft  remaining  with  the  Lader. 


[  300  ] 


C  H  A  P.     VIII. 


I.  What  Prifage  is,     and  fwhere  I 
taken y  and  of  n.vhat. 

II.  Merchant   Strangers   exempted 
from  the  fame. 

III.  When  due,  and  the  exemption 
of  the  Citizens  of  London  from 
the  fame. 

IV.  What  Citizens  are  capable,  and  | 
'v:here  not. 

V.  A  Foreigner  imports  and  makes 
a  Citizen  Executor  and  dies  ; 
^whether  hefhall  ha^ve  the  Benefit 
of  the  Immunity. 

VI.  Where  a  foreigner  fells  to  a  Ci- 
tizen before  Bulk  be  broken^  the 

■  Vendee  fhall  be  chargeable. 
VJI.    Where  a  Grant  to  difcPaiji 

a  particular  Ship  fhall  he  good  ; 

and  m'hers  a  Grant  to  partitMlu^ 

Terfons  foal  I  be  other'vjife.    ^  _  ^ 
Will.  Cy  Butlerage,    avhat/ ijid 

nvho  are  exempted. 

IX.  Where  the  King  becomts  m^. 
tuled  to  thofe  Duties. 

X.  A  Grant  to  be  free  of  oIICmJ- 
tomSf  Impofitionsy  &c. '  e^ittliii 
no*  to  Prifage  and  Butleragft. 

XI.  Cinque  Ports  exempted  frwi 


Dyer  92,  42, 


Fleta,  1.2.  c. 


^alk.  617. 

Hard.  477. 

I,  T3^{A^^  is  a  certain  taking  or  purveyance  for  Wine 
\^  to  the  King's  ufe  ;  the  fame  is  an  antient  Dyty 
which  the  Kings  of  England  have,  time  out  of  mind, 
had  and  .received  ;  the  manner  hath  been  by  takingj)f 
every  Ship  or  Veflel  that  Oiould  come  into  this  Realfh, 
if  ten  Tuns,  to  have  for  Prifage  one  Tun  :  And  if^it 
contain  twenty  Tuns  or  more,  to  have  two  Tuns,  {'oh, 
one  Tun  before  the  Mail,  and  the  other  behind  the  Maftj 
paying  20  s.  for  each  Tun.  This  antient  Immunity  they 
have  enjoyed  as  a  Flower  of  the  Crown,  and  by  fottie 
has  been  conceived  not  grantable  away  without  A6tof 
Parliament.  But  yet  in  6  E.  3.  fol,  3.  Cafe  15.  menti- 
ons the  fame  to  be  grantable  over. 

Such  Wine  maybe  tailed,  and  the  fulled  Veflels  may 
be  taken  for  Prifage.  And  if  a  Ship  has  ten  Tuns,  then 
only  one  Tun  is  to  be  taken  :  and  none  if  there  be  but 
.fine  Tuns.-;  unlefs  there  be  Evidence  of  Fraud.  But  if 
there  be  nine  Tuns  and  an  half,  that  is  Fraud  apparent  \ 
and  then  one  Tun  fhall  be  taken. 

II.  King 

Chap.  VIII.  fBt  pjtfage  attn  Tdutuu^z.  301 

II.  King  Edward  the  Firft  having  laid  fome  Impofi- 
tlons  on  the  Merchants,  which  in  Anno  25.  of  his  Reign, 
being  taken  ^away,  with  promife,  that  neither  he  nor 
his  Succeflbrs  fhould  do  any  fuch  thing  without  Aflent 

of  Parliament  ;    in  the  one  and  thirtieth  of  his  Reign  Rot.  Pari,  •^i, 
they  granted  him  an  increafe  of  Cuftoms,    in  lieu    of  ^  ^'  ^^^*  *' 
which  he  granted  them  many  Immunities,  as  Releafe  of 
Prifage  ;  &c. 

III.  Prifage  is  not  due  till^  the  unlading,  or  that  which  Teh.  198. 
is  commonly  called  breaking  of  Bulk  ;  for  the  Words  are  ^^^^'^"^  '^• 
J)d  qualibet  navi  important  vina^  i^  difonerant  inde.     King     •* 
Edward  the  Third  by  his  Charter  dated   6  Martii  Anno 
HegniPrimo,  granted  his  Royal  Charter  of  difcharge  to 

Ifie  Mayor,  Commonalty,  and  Citizens  of  London^  in 
h^c  verba ^  (viz.)  ^od  de  vims  Civium  nulla  prifa  fiant^ 
fed  perpetue  inde  ejfent  quieti^  ^c.  which  was  afterwards 
allowed  in  the  Exchequer. 

IV.  It  is  not  every  Citizen  that  is  capable  of  this  Pri-  4  ^'  6- 
vilege,  but  only  thole  that  are  refident  within  the  City  :  Kno^li&Q^[Q 
And  fo  it  was  ruled  in  the  Cafe  of  one  Knowles^  who  be-  ^    "-^  ^'  ^' 
ing  a  Citizen  and  free  Grocer  of  London.,    removed  his 
Houfhould  cum  pannis,    and  did  dwell  at  Brijlol^  but  yet 

kept  his  Shop  in  London  \  and  a  Ship  of  his  arriving  with 
Mints  ?it  London,  and  beino;  unladen,  the  Prifao;e  was 
aemanded  ;    he  claimed  the  Benefit  of  difcharge.      It 

as  adjudged,  he  was  not  capable  of  the  fame  :    For  he 
twill  claim  the  benefit  of  his  difcharge  ought  to,  be 

wis  ^  Jncola  commorans. 

By  24  //.  6.  (a  private  A6t  of  Parliam.ent)  Com-  3  BuIJIr.  4, 5. 
plaint  was  made.  That  the  Lord  Mayor  of  London 
would  make  Strangers  Citizens  *,  It  was  there  declared, 
that  this  benefit  to  be  difcharged  from  Payment  of 
Prifage.,  did  not  extend  to  fuch  Citizens  as  were  donatiy 
made  free,  but  unto  thofe  Citizens  only  which  comn